G. MURRAY SNOW, District Judge.
Pending before the Court is Mr. Julian Loera's appeal from the judgment of United States Magistrate Judge Mark Aspey denying Loera's motion to dismiss for lack of jurisdiction based on his claimed Indian status. (Mag. Doc. 29.)
On February 8, 2013, Loera was charged by complaint with assault pursuant to 18 U.S.C. § 113(a)(4) which alleged that Loera, a non-Indian, assaulted, struck, and beat an Indian victim. (Mag. Doc. 1.) Federal subject-matter jurisdiction was supplied by 18 U.S.C. § 1152, which extends the reach of the "general laws of the United States as to the punishment of offenses" committed any place within the jurisdiction of the United States "to the Indian country." Section 1152, however, does not extend such jurisdiction when the offense is "committed by one Indian against the person or property of another Indian. . . ." Loera filed a motion to dismiss and argued that the court lacked subject-matter jurisdiction since Loera is an Indian for purposes of § 1152. After a two-day hearing, the Magistrate Judge denied his motion.
A month later, the parties filed a stipulated/joint motion seeking permission to file a superseding Information charging Loera with disorderly conduct (Count 1) and assault (Count 2). The Magistrate Judge granted the stipulation/joint motion. Loera then pleaded guilty to Count 1. The plea agreement preserved Loera's right to appeal "this case on the sole issue of whether the defendant is an Indian for purposes of jurisdiction under 18 U.S.C. § 1152." (Mag. Doc. 41 at 3.) The Magistrate Judge accepted the plea, and Loera eventually was sentenced to time served. (Mag. Doc. 43, 44.)
Loera timely filed his notice of appeal, which the parties fully briefed after the conclusion of an initial stay granted by this Court to allow the Ninth Circuit to consider en banc the case of United States v. Zepeda, 742 F.3d 910 (9th Cir. 2014).
The Court adopts the factual findings of the magistrate court, none of which was significantly challenged by the parties:
(Mag. Doc. 29 at 8-14.)
On appeal, Loera raises two challenges to the magistrate court's denial of his motion to dismiss. Loera first argues that the magistrate court misapplied the § 1152 burden-shifting framework by inappropriately placing the ultimate burden-of-persuasion on Loera and not the Government. Loera next argues that in any case the Government presented insufficient evidence to prove beyond a reasonable doubt that he is not an Indian under § 1152.
Loera's first challenge, whether the Magistrate Judge failed to properly shift the burden-of-persuasion away from Loera and on to the Government, is reviewed de novo. See United States v. Coutchavlis, 260 F.3d 1149, 1156 (9th Cir. 2001).
As to Loera's second challenge, the Government charged Loera with a Class B misdemeanor. Upon the filing of Loera's motion to dismiss, the parties agreed that all evidence submitted to the Magistrate Judge during the two-day evidentiary hearing on the motion would be admitted for trial purposes. In its subsequent order on the motion, the court explained that although Loera challenged his Indian status through a motion to dismiss, the court was treating the issue as if it were tried to the court pursuant to Federal Rule of Criminal Procedure 29. (Mag. Doc. 29 at 4 n.2.)
Thus, "[a]lthough jurisdictional questions are ordinarily reviewed de novo," because the motion "challenge[d] the sufficiency of the evidence underlying a jurisdictional element, [this Court] owe[s] deference to the [magistrate court's] ultimate factual finding[s]." United States v. Cruz, 554 F.3d 840, 843-44 (9th Cir. 2009). Accordingly, this Court reviews the court's "decision under the standard applied to sufficiency-of-the-evidence challenges: `whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id. at 844 (citation omitted). The Court thus rejects the Loera's formulation of the appropriate standard of review.
The Ninth Circuit considers two prongs when determining whether an individual qualifies as an Indian under § 1152: "(1) proof of some quantum of Indian blood, whether or not that blood derives from a member of a federally recognized tribe, and (2) proof of membership in, or affiliation with, a federally recognized tribe."
The first prong may be satisfied by the existence of just "some blood, [thus] evidence of a parent, grandparent, or great-grandparent who is clearly identified as an Indian is generally sufficient to satisfy this prong." Id. The Government concedes that Loera meets the first prong and thus it is not at issue here. (Doc. 24 at 12; Mag. Doc. 29 at 14:20-21.)
The second prong is further divided into four factors expressed "in declining order of importance: (1) enrollment in a federally recognized tribe; (2) government recognition formally and informally through receipt of assistance available only to individuals who are members, or are eligible to become members, of federally recognized tribes; (3) enjoyment of the benefits of affiliation with a federally recognized tribe; [and] (4) social recognition as someone affiliated with a federally recognized tribe through residence on a reservation and participation in the social life of a federally recognized tribe." Zepeda, 792 F.3d at 1114 (citing Bruce, 394 F.3d at 1224). These factors are not exclusive. United States v. LaBuff, 658 F.3d 873, 877 (9th Cir. 2011) (citation omitted).
Finally, Bruce delineated a burden-shifting framework to govern its two-prong analysis. See Bruce, 394 F.3d at 1222-23. The framework "is in the nature of an affirmative defense." Id. at 1223. It is a two-part shift. Loera initially carries the burden-of-production, and must put forth "enough evidence of [his] Indian status to permit a fact-finder to decide the issue in [his] favor." Id. Once this initial burden is met, the Government "retains the ultimate burden of persuasion" and must prove to the fact-finder, beyond a reasonable doubt, that Loera does not qualify as an Indian. Id. (citations omitted).
The magistrate court concluded that Loera had "met his [initial] burden of proof . . . that [he] is an `Indian'[,]" and thus "shifted [the burden] to the [G]overnment to prove beyond a reasonable doubt" that Loera is not an Indian. (Mag. Doc. 29 at 14.) Because the burden was the Government's, Loera takes issue with two sentences in the magistrate court's order that begin with "Defendant has not established[,]" which he argues demonstrate the court's improper application of the Bruce burden-shifting framework, i.e., the court failed to actually shift the burden to the Government. (See id. at 16:5-7, 19:22-25.)
This is not the case. The order came after two days of hearings where both parties presented their evidence as to Loera's Indian status under § 1152. The order demonstrates that the court dutifully analyzed the admitted evidence, weighed the party's arguments in favor of their respective positions, and held that "after balancing all of the factors in the Bruce test, the Court concludes the government has met its burden of proof and shown beyond a reasonable doubt that Defendant is a `non-Indian'." (Id. at 20.) Loera presents no evidence beyond the two cited sentences that the court, during the two-day evidentiary hearing or in its final analysis, imposed the ultimate burden on Loera. In fact, the hearing demonstrates that Loera met his initial but lessened burden of some Indian connection and then, once the burden shifted, the Government met its burden of establishing that Loera does not have Indian status. The court committed no error in its application of Bruce's burden-shifting framework.
Enrollment in a federally recognized tribe is the "first and most important" of the Bruce factors. See, e.g., Cruz, 554 F.3d at 847. It is not, however, determinative, in and of itself, of Indian status. Bruce, 394 F.3d at 1224 (citation omitted). It is undisputed here that Loera is not an enrolled member of the Fort Mojave Tribe nor is Loera eligible to become a member since under the Tribe's Constitution his 3/16th blood quantum falls below the 1/4th blood quantum threshold. As the magistrate court noted, he has unsuccessfully sought enrollment in the Tribe on three separate occasions. As such, Loera fails to meet the first Bruce factor.
Nevertheless, through his mother, Loera is a descendant of the Tribe. "[W]hile descendant status does not carry similar weight to enrollment . . . it reflects some degree of recognition" by the Tribe. Maggi, 598 F.3d at 1082. Yet like tribal enrollment, it is not dispositive of Indian status. Cruz, 554 F.3d at 847 (Bruce makes clear "that tribal enrollment, and therefore a fortiori descendant status, is not dispositive of Indian status. . . .").
Zepeda altered the language of the second factor of the Bruce test and clarified that the factor focuses on whether the individual received assistance reserved only for tribal members or those eligible to become tribal members. Zepeda, 792 F.3d at 1114. This alteration is not trivial as the original language from Bruce tested whether the individual received assistance "reserved only to Indians[.]" Bruce, 394 F.3d at 1224.
Here, the evidence indicates that on multiple occasions Loera received medical assistance as an adult from the Fort Mojave Indian Health Center and the Fort Mojave Indian Tribe Behavioral Health Department.
Loera argues that his receipt of Tribal tutoring services in elementary and high school, his receipt of meals during his childhood through the Tribe's nutritional services program, his attendance at summer classes as a child put on by the Tribe's cultural department, his receipt of healthcare services, and his ability to access at no cost the Tribe's recreational facilities all support finding that he satisfies the third Bruce factor. (Doc. 16 at 31-39.)
Loera received many such benefits in the distant past; they thus have limited relevance to the present determination of his Indian status. The Ninth Circuit in Zepeda made clear that a "defendant must have a current relationship with a federally recognized tribe." Zepeda, 792 F.3d at 1113 (emphasis added). In the context of § 1153, Zepeda directed that "the government must prove that the defendant was an Indian at the time of the offense with which the defendant is charged. If the relevant time for determining Indian status were earlier or later, a defendant" would not be put on proper notice of the consequences of his crime. Id.
This admonition does not render the benefits Loera received as a child immaterial, but Zepeda's guidance does suggest that a reviewing court should attribute greater weight to evidence of the defendant's Indian status that is more contemporaneous with the underlying crime than evidence from a long-time past. Therefore, while Loera received tutoring, meals, and summer classes from the Tribe during his childhood, those benefits weigh little on the overall calculation of his Indian status.
On the other hand, the Magistrate Judge found that Loera received medical care at the Fort Mojave Indian Health Center and the Fort Mojave Indian Tribe Behavioral Health Department on multiple occasions as an adult. Where a defendant "frequently received healthcare services on the basis of his status as a descendent of an enrolled member, he enjoyed the `benefits' of his tribal affiliation, as required by Bruce's third factor." LaBuff, 658 F.3d at 878. Additionally, the findings suggest that Loera utilized the Tribe's golf course and boat launch as an adult. The facilities cost a fee to the public but may be used for free by Tribal members and descendants of Tribal members.
The Government concedes that Loera does enjoy certain benefits due to his affiliation, as a descendant, with the Tribe, and as such Loera satisfies Bruce's third factor. Nevertheless, because the vast majority of these benefits are not currently being received or offered, because they were received not in recognition of Indian status but rather in recognition of descendant status, and because they only go to the third Bruce factor of four (each factor declining in importance), they do not suggest a basis of doubt sufficient to conclude that the Government failed to meet its burden of demonstrating Loera's non-Indian status beyond a reasonable doubt. See Zepeda, 792 F.3d at 1114.
The final and "least important of the four Bruce factors" requires a showing of "social recognition as someone affiliated with" the Tribe "through residence on a reservation and participation" in Tribal social life. Cruz, 554 F.3d at 848; see also Zepeda, 792 F.3d at 1114. The examination of social recognition is not only from the perspective of the Tribe, but the "the extent to which an individual considers himself an Indian-whether by deciding, for example, to `reside[ ] on a reservation,' to `participat[e] in Indian social life,' or to `recei[ve] assistance reserved only to Indians,' . . . is [also] most certainly relevant in determining Indian status." Cruz, 554 F.3d at 849-50 (citation omitted).
Loera chose to reside at his aunt's house on the Tribe's reservation for the majority of his life while not incarcerated. Loera has not spent his entire life living on the reservation, however, spending some time with his mother who lives close but not on the reservation. Loera also raises other evidence that he argues satisfies Bruce's fourth factor, including: (1) he played the traditional Tribal game of shinny; (2) he attended Tribal funerals; (3) he participated in traditional sweat lodge ceremonies while in prison; and (4) his mother, aunt, grandmother, and son are enrolled members of the Tribe.
On the other hand, the Government highlights that Loera was barred from seeking Tribal office or voting in Tribal elections, he chose to work for a landscaping business off the reservation, and he attended all of grade school and most of high school off the reservation.
On balance, while there is evidence that Loera participated in Tribal social activities, his participation is not significant and does not support the inference of a strong social recognition with or by the Tribe. For example, although Loera played the traditional game shinny, he did not play it regularly. While Loera attended Tribal funerals and took part in related traditional ceremonies, funerals were generally open to anyone. Loera also participated in traditional sweat lodge ceremonies, yet those ceremonies only took place in prison, and they were not part of the Tribe's religion or culture. Finally, the Court does not recognize the import of the fact that Loera's son and some of his relatives are members of the Tribe—that fact is unrelated to whether the Tribe socially recognizes Loera as an Indian. In the end, Loera's decision to live on the reservation, and the Tribe's acceptance of that decision, support finding a modest level of social recognition under Bruce's fourth factor.
Bruce's four factors are not exclusive; thus evidence that the Tribe has previously exercised criminal jurisdiction over Loera in the tribal courts lends some support for tribal recognition. See Bruce, 394 F.3d at 1226-27; LaBuff, 658 F.3d at 879. Here, however, the Magistrate Judge found that "the Fort Mojave Indian Tribe has not assumed tribal criminal jurisdiction over [Loera], indeed it has steadfastly refused to do so." (Mag. Doc. 29 at 13, 14, 18.)
Loera put on evidence that he was criminally prosecuted by the Tribe as a juvenile, and asserts that such an assumption of jurisdiction should favor an affirmative finding of Indian status. On appeal, Loera contests the court's finding that Loera's juvenile record, which included numerous proceedings in front of the Fort Mojave Juvenile Court that seemed criminal in nature, were in fact, under the Fort Mojave Indian Tribal Code, civil in nature. (Id. at 18 n.9.) Loera cites to the testimony of two Tribal police officers, testimony already presented to and analyzed by the court and discussed in its order denying Loera's motion. In fact, in a supplemental stipulation filed after the court ruled on Loera's motion, the parties submitted the Tribe's Children's Article. (Mag. Doc. 31 at Ex. B.) The Children's Article governs the Tribe's adjudication of issues related to its children.
Even assuming the Tribe exercised jurisdiction over Loera during his youth, that does little to indicate the Tribe's current recognition of his status as an Indian, especially in light of its present decision to not exercise jurisdiction over this case and a another recent case in November 2012. See Zepeda, 792 F.3d at 1113 (Loera "must have a current relationship" with the Tribe.). Further, Loera's juvenile record, assuming it indicates an assumption by the tribe of criminal jurisdiction, is "not conclusive of Indian status" and really only goes to his burden of production, which has been met. See Bruce, 394 F.3d at 1227. Ultimately, whether the Tribe did or did not exercise jurisdiction over Loera as a juvenile bears little to no weight on this Court's review of the Magistrate Judge's determination of Loera's Indian status.
Loera does not meet the first two and most important factors of Bruce's second prong. And while evidence supports finding that he did satisfy the third and fourth Bruce factors, the Government has successfully demonstrated that Loera's satisfaction of those factors is weak. In the end, accounting for the descending level of importance given to each Bruce factor, and viewing the evidence in the light most favorable to the Government, a rational trier of fact could have found beyond a reasonable doubt that Loera does not qualify as an Indian. See Cruz, 554 F.3d at 844. Accordingly, the Court affirms the decision of the magistrate court below; the exercise of federal jurisdiction over this case was appropriate pursuant to § 1152.
