MARK E. ASPEY, United States Magistrate Judge.
Before the Court is Defendant's motion (Doc. 10) to dismiss the charge against him, alleging an assault by striking, beating or wounding, in violation of 18 U.S.C. § 113(a)(4) and 18 U.S.C. § 1152, a Class B misdemeanor also referred to as a petty offense.
Defendant's motion and the government's response raise matters for the Court's consideration which other courts have left for another day. See Means v. Navajo Nation, 432 F.3d 924, 934-35 (9th Cir.2005). The resolution of the issues requires the Court to journey into the world of "Indian Law" which has been described as a "complex patchwork of federal, state and tribal law, which is better explained by history than by logic." United States v. Bruce, 394 F.3d 1215, 1218 (9th Cir.2005) (internal quotations omitted). Indian law has also been described
The issues raised in this matter are:
1. After considering the factors found in Bruce, is Defendant an "Indian" as that term is used in 18 U.S.C. § 1152?
2. As a matter of law, assuming Defendant is an Indian and because he is not charged with a crime found in the Major Crimes Act (18 U.S.C. § 1153), to what type of Indian does 18 U.S.C. § 1152 convey immunity from federal prosecution?
A criminal complaint docketed in the United States District Court for the District of Arizona on February 8, 2013, alleges that on February 2, 2013, on the Fort Mojave Indian Reservation, in the District of Arizona, Defendant, alleged by the government to be a "non-Indian", knowingly and recklessly assaulted a female Indian, i.e., an enrolled member of the Fort Mojave Indian Tribe. The complaint charges Defendant committed an assault by striking, beating or wounding, in violation of 18 U.S.C. § 113(a)(4) and 18 U.S.C. § 1152. Section 1152, also known as the "General Crimes Act," authorizes federal jurisdiction over certain crimes committed by non-Indians against Indians in Indian country.
Section 1152 provides:
On March 6, 2013, Defendant filed a motion to dismiss the charge, arguing the Court does not have jurisdiction to prosecute him pursuant to section 1152 because he is an "Indian" and the statute precludes federal jurisdiction over Indian-on-Indian crimes in Indian country. At the parties' request the Court held an evidentiary hearing with regard to the issue on April 19, 2013, and March 8, 2013. The parties were ordered to and did submit proposed findings of fact and conclusions of law on June 14, 2013. See Doc. 26 & Doc. 27. For the reasons that follow, Defendant's motion to dismiss the charge against him is
Federal Rule of Criminal Procedure 12(b)(2) provides "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." Fed.R. Crim.P. 12(b)(2). A charge in a complaint may be dismissed if it is subject to a defense that may be decided solely on issues of law. See United States v. Schafer, 625 F.3d 629, 636-37 (9th Cir.2010), cert. denied, ___ U.S. ___, 131 S.Ct. 2919, 179 L.Ed.2d 1259 (2011); United States v. Flores, 404 F.3d 320, 324 (5th Cir.2005) (holding the propriety of granting a motion to dismiss an indictment by pretrial motion is "contingent upon whether the infirmity in the prosecution is essentially one of law or involves determinations of fact."). Rule 12(b), Federal Rules of Criminal Procedure, may be utilized to challenge the Court's criminal jurisdiction over a specific
However, in some instances, subject matter jurisdiction turns on contested facts. In such a case, it is for the factfinder to resolve the contested facts. Arguments raised in a motion to dismiss that rely on disputed facts should be denied. United States v. Caputo, 288 F.Supp.2d 912, 916 (N.D.Ill.2003), citing United States v. Shriver, 989 F.2d 898, 906 (7th Cir.1992). In United States v. Zepeda, 705 F.3d 1052, 1056 (9th Cir.2013), the Ninth Circuit indicated "... it is the special province of the jury to resolve any factual disputes arising under the two prongs of the Bruce test."
Native American tribes generally have exclusive jurisdiction over crimes committed by Indians against Indians in Indian country.
In a case brought by the government pursuant to 18 U.S.C. § 1152, the defendant has the burden of raising his Indian status as an affirmative defense and carrying the initial burden of production for that issue by a preponderance of the evidence. Once a defendant has met his burden of production, the burden shifts to the government to disprove the defense beyond a reasonable doubt. See United States v. Maggi, 598 F.3d 1073, 1081 n. 3 (9th Cir.2010)
In other non-criminal areas of federal law, Congress has defined the term "Indian" differently than the term has been defined by the federal courts with regard to sections 1152 and 1153. See United States v. LaBuff, 658 F.3d 873, 877 (9th Cir.2011), cert. denied, ___ U.S. ___, 132 S.Ct. 1855, 182 L.Ed.2d 647 (2012). To resolve the issue of who is an "Indian" for purposes of section 1152, in jurisdictions controlled by the precedent of the Ninth Circuit Court of Appeals, the District Courts apply the test stated in Bruce. See, e.g., Maggi, 598 F.3d at 1082.
Based upon the stipulations of the parties and the two days of evidentiary hearings, pursuant to Rule 23(c), the Court
1. Defendant was born in 1981 and is 32 years of age. Defendant was born "off" the Fort Mojave Indian Reservation because there was no hospital on the reservation.
2. Defendant is, by blood quantum, 3/16 Fort Mojave Indian, all derived from his mother who is an enrolled member of the Fort Mojave Indian Tribe. Defendant's mother's blood quantum is 3/8 Fort Mojave Indian. Defendant's biological father is Hispanic. Defendant does not and has not had contact with his biological father.
3. Defendant has been denied enrollment as a member of the Fort Mojave Indian Tribe, a federally-recognized tribe. Defendant was denied membership because, pursuant to its Constitution, the tribe requires a 1/4 Fort Mojave blood quantum to be entitled to membership. Defendant was denied enrollment in the Fort Mojave Indian Tribe on or about February 11, 2006. According to his mother, Defendant was denied enrollment in the Fort Mojave Indian Tribe on two other occasions.
4. Defendant's mother, aunt, grandmother, and son are enrolled members of the Fort Mojave Indian Tribe.
5. Defendant was raised primarily by his mother and his aunt. His aunt, an enrolled member of the Fort Mojave Indian Tribe, lives on the Fort Mojave Indian Reservation. Defendant's mother resides near but off the reservation.
6. When Defendant was growing-up he lived a majority of the time on the Fort Mojave Indian Reservation with his aunt, and he also lived for some time off the reservation with his mother.
7. The Fort Mojave Indian Health Center is operated by the Fort Mojave Indian Tribe pursuant to a "638 contract" with the federal government, pursuant to the Indian Self-Determination and Education Assistance Act, Pub. L. No. 93-638, codified at 25 U.S.C. §§ 450, et seq.
8. To be eligible for treatment at the Fort Mojave Indian Health Center, patients must provide either proof of enrollment in a federally-recognized Indian tribe or proof they are descended from a member of a federally-recognized Indian tribe.
9. Defendant is eligible to receive health care treatment from the Fort Mojave Indian Health Center, which has facilities in Needles, California, and Mohave Valley, Arizona. Defendant is eligible for these services because he is a descendant of an enrolled member of a federally-recognized Indian tribe.
10. Defendant received healthcare treatment at the Fort Mojave Indian Health Center in Mohave Valley, Arizona, on at least three occasions in 2008 and on February 24, 2012, and October 31, 2012.
11. Defendant has received services from the Fort Mojave Indian Tribe Behavioral Health Department on at least forty different occasions between July 2, 2007, and February 23, 2010.
12. There is no admissible evidence that Defendant ever received medical service from a federal "Indian Health Services" ("IHS") facility, or that he received services which were paid for by IHS. However, the Court notes that, as a descendant of a member of a federally-recognized Indian tribe, Defendant might be eligible to receive services from IHS. See 25 U.S.C. § 1603(13).
13. Defendant attended grade school and most of high school at Arizona public schools that were located off the Fort Mojave Indian Reservation. Defendant did briefly attended high school on the Fort
14. Defendant received tutoring services through the Fort Mojave Indian Tribe while he was attending elementary and high school. He received those services through the Fort Mojave Indian Tribe because he is a descendant of an enrolled member of the tribe. Defendant has not received these services since at least the age of 16.
15. As a juvenile, Defendant received breakfast and lunch through the Tribal Nutrition Program.
16. For approximately two years when he was nine to eleven years of age, during the summer, Defendant attended classes at the Fort Mojave Cultural Department.
17. As a juvenile, eighteen separate cause numbers were filed with regard to Defendant in Fort Mojave Tribal Court, including obstruction of police duties and underage consumption of alcohol. As an adult, Defendant has received civil citations from the Tribal Police as a result of his actions on the reservation.
18. Defendant is not fluent in the Fort Mojave Indian language. He knows less than twenty words of the language and is self-taught. His aunt and his mother are not fluent in the language, and very few Fort Mojave Indians speak the language.
19. Defendant has tattoos over much of his body. With the exception of a tattoo of his grandmother, he obtained all of the tattoos while he was serving time in prison. The tattoos were designed by Defendant. One tattoo references the Arizona Village, which is on the Fort Mojave Indian Reservation. Defendant has some tattoos that are reminiscent of Native American culture in general and Defendant has one tattoo depicting Pamela Anderson and one depicting Christina Aguilera.
20. While in prison Defendant participated in sitting in a sweat lodge, which is not a Fort Mojave Indian ritual. Defendant never engaged in this ritual on the Fort Mojave Indian Reservation.
21. Defendant has played a traditional Fort Mojave Indian game called shinny (phonetic). He does not and never has played the game regularly. Because he is a descendant of a tribal member, Defendant can use tribal recreational facilities at no cost, including the use of a golf course and a boat launch located on the Colorado River. Members of the public can also use these facilities but a fee is normally required.
22. Defendant is currently unemployed. Defendant previously worked for his step-father, who is Hispanic, in a landscaping business not affiliated with the Fort Mojave Indian Tribe.
23. The alleged victim in the charged assault is an adult female Native American. She is an enrolled member of the Fort Mojave Indian Tribe and the mother of Defendant's son. The charged assault is alleged to have occurred at Defendant's aunt's house on the reservation.
24. Defendant's son is 15/32 Fort Mojave Indian. Defendant's mother has custody of Defendant's son and they do not live on the Fort Mojave Indian Reservation. Defendant does not contribute financially to the support of his son.
25. Defendant is currently in federal custody in Coconino County, where he is serving a seven-month sentence on a charge of assault on a federal law enforcement officer in violation of 18 U.S.C. § 111(a), which custody arises from his violation of supervised release in that matter. The matter was prosecuted before this Court.
26. Defendant's Arizona driver's license, issued in October 2012, indicates
27. Defendant does not have his own residence on the Fort Mojave Indian Reservation.
28. From approximately 2002 through 2007, and 2009 through early 2012, Defendant was in state prison in California on felony assault convictions.
29. Defendant was recently sentenced to five days in jail for a State of Arizona misdemeanor charge of resisting arrest, which was prosecuted in the Bullhead City, Arizona, Justice Court. Defendant pled guilty to this charge on or about February 7, 2013. The crime occurred on the Fort Mojave Indian Reservation at the home of Defendant's aunt.
30. On or about November 5, 2012, at an arraignment for criminal charges in the Fort Mojave Tribal Court, the Tribal Court dismissed the charges against Defendant. The Tribal Court did not recognize criminal jurisdiction over Defendant, because defendant is not an enrolled member of the Fort Mojave Tribe. The tribal prosecutor was granted leave to file a civil complaint against Defendant. The incident that occurred on November 5, 2012, involved the same victim as in the instant case.
31. The Fort Mojave Tribal Police do not have authority to charge non-Indians with criminal violations under the Fort Mojave Tribal Code.
32. Unlike an enrolled tribal member, Defendant is not eligible to seek election for tribal office nor is he eligible to vote in tribal elections. Additionally, unlike an enrolled tribal member, the tribe may remove and exclude Defendant from the Fort Mojave Indian Reservation.
33. There is nothing in the record before the Court to indicate the Bureau of Indian Affairs considers Defendant to be an Indian.
34. Defendant has attended funeral services for Fort Mojave tribal members and in doing so participated in traditional ceremonies for the deceased. These services are generally open to anyone, however, the Court heard testimony that these services are primarily attended by family members, friends, and those residing in the Fort Mojave community (some who are not Native American). Defendant has worn traditional Mojave Indian clothing at the funerals.
35. The Fort Mojave Tribal Police referred the instant criminal case to the United States Attorney's Office for the District of Arizona (Flagstaff Division) because the Fort Mojave Tribal Court has ruled it does not have criminal jurisdiction over Defendant pursuant to the Fort Mojave Tribal Code.
First, the Court concludes Defendant has met his burden of proof by a preponderance of the evidence that Defendant is an "Indian". Accordingly, the burden has shifted to the government to prove beyond a reasonable doubt that Defendant is not an "Indian."
The Fort Mojave Indian Tribe is a federally-recognized tribe. Defendant is 3/16th, or one and one-half eighths, Fort Mojave Indian by blood quantum. Defendant does not assert that, in addition to Fort Mojave, he has other Native American ancestry. The Ninth Circuit has previously held a one-eighth blood quantum to be adequate to establish Native American ancestry. See LaBuff, 658 F.3d at 874-75; Maggi, 598 F.3d at 1080. Accordingly, Defendant has, barely, satisfied the first prong of the Bruce test.
United States v. Juvenile Male, 666 F.3d 1212, 1214-15 (9th Cir.2012) (some internal citations omitted).
Defendant is not an enrolled member of a federally recognized Indian tribe, his request for admission having been rejected by the Fort Mojave Indian Tribe on several occasions. The Tribe's plenary ability to reject Defendant's application for tribal membership is one of the "full attributes of sovereignty" possessed by the Tribe, repeatedly emphasized by the federal courts and, accordingly, a decision not subject to review by any federal court. See, e.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55, 98 S.Ct. 1670, 1675, 56 L.Ed.2d 106 (1978); Lewis v. Norton, 424 F.3d 959, 961 (9th Cir.2005). Although the most important element of this portion of the test, this determination is not dispositive of the issue. See, e.g., United States v. Antelope, 430 U.S. 641, 647 n. 7, 97 S.Ct. 1395, 1399 n. 7, 51 L.Ed.2d 701 (1977) ("[E]nrollment in an official tribe has not been held to be an absolute requirement for federal jurisdiction, at least where the Indian defendant lived on the reservation and maintained tribal relations with the Indians thereon." (internal quotation omitted)); United States v. Broncheau, 597 F.2d 1260, 1263 (9th Cir.1979) ("Enrollment is the common evidentiary means of establishing Indian status, but it is not the only means nor is it necessarily determinative.").
The second factor of the second prong of Bruce evaluates "government recognition formally and informally through receipt of assistance reserved only to Indians." Defendant presented evidence he received government assistance provided to the descendants of Indians. Defendant has not established that he received benefits from the federal government reserved only to Indians.
With regard to the third factor, which is relevant to Defendant's "political affiliation" to the tribe, Defendant produced evidence that he received benefits reserved to descendants of members of the Fort Mojave Indian Tribe. See LaBuff, 658 F.3d at 878; Means, 432 F.3d at 930. Although descendant status carries some weight, it is not as important as actual enrollment in the tribe. See Maggi, 598 F.3d at 1082. Additionally, from the tribe's perspective, such descendant benefits are benefits provided to the tribal member, in this case Defendant's mother, and not evidence of Defendant's political affinity with the tribe. Without such descendant benefits Defendant's mother would have been required to seek assistance off the reservation.
This test evaluates whether the defendant was raised and attended school on a reservation, and whether they participated in tribal activities, such as voting in tribal elections. While participating in tribal activities is important for purposes of evaluating this factor, the Ninth Circuit has held that the lack of such activities does not preclude a reasonable inference of social recognition when the defendant has lived his "entire life" on the reservation. LaBuff, 658 F.3d at 878-79.
Unlike the defendant in LaBuff, Defendant did not receive free healthcare available only to Indians, i.e., services provided by IHS. Unlike the defendant in LaBuff, Defendant has not lived on the reservation his entire life, nor has Defendant been convicted in Indian tribal court for crimes, as compared to civil juvenile proceedings; to the contrary, Defendant has been prosecuted for crimes by the local justice court, by the federal court, and by at least one state court.
In addition to the specific factors listed in Bruce, when determining if Defendant is an "Indian" for purposes of section 1152, as noted previously, the Court may also consider evidence relating to whether Defendant was prosecuted and convicted under the jurisdiction of the Fort Mojave or other tribal courts. See LaBuff, 658 F.3d at 879; Cruz, 554 F.3d at 850-51. The assumption and exercise of tribal jurisdiction over criminal charges demonstrates tribal recognition of the defendant as an Indian. See Bruce, 394 F.3d at 1227. In this matter, the Fort Mojave Indian Tribe has not assumed tribal criminal jurisdiction over Defendant, indeed it has steadfastly refused to do so.
Although Defendant's lack of participation in certain tribal member activities
Neither has Defendant participated, to any substantial degree, in exclusively tribal, as compared to generic "Native American", activities, which would reflect an "affiliation" with a federally-recognized tribe. Attending funerals is not a uniquely tribal activity; the funerals are attended by tribal members and non-Indians. Participating in a sweat lodge ceremony while incarcerated, a ritual not considered to be part of Fort Mojave Indian religion or culture, is not a tribal activity.
Accordingly, the Court concludes that Defendant does not meet the first, and most important element of the second half of the Bruce test, i.e., Defendant is not an enrolled member of a federally-recognized Indian tribe. With regard to the second and third elements, Defendant has received some benefits reserved to the descendants of Indians, although not those reserved to Indians, and Defendant has enjoyed some benefits of tribal affiliation.
With regard to the fourth element of the second prong of the Bruce test, although a close issue, the Court concludes Defendant has not established sufficient, current, "social recognition as an Indian through residence on a reservation and participation in Indian social life." The evidence in this matter indicates that Defendant has never maintained his own residence on the reservation and, unlike a tribal member, Defendant can be removed and excluded from the Fort Mojave Indian Reservation. Defendant is ineligible to run for tribal office and he may not vote in tribal elections. Most importantly, the only tribe with which Defendant claims affiliation has repeatedly refused to recognize him as a member. The Fort Mojave Tribal Court has decided that it does not have criminal jurisdiction over Defendant due to his status as a non-member.
Accordingly, after balancing all 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". Therefore, the Court has jurisdiction over Defendant, a non-Indian, pursuant to 18 U.S.C. § 1152.
The government argues Defendant's status as a non-Indian has already
Doc. 28 (evidentiary hearing conduct May 8, 2013), Def.'s Exh. 4.
According to the record, the Tribal Court merely determined Defendant was not a tribal member and on that basis would not assume criminal jurisdiction. The Tribal Court did not determine Defendant's "Indian" status. Whether additional considerations entered into the Tribal Court's decision not to assume jurisdiction over Defendant, such as due to the costs of prosecution and incarceration, are not known.
The government further notes the "jurisdictional void" over Defendant's criminal acts if the Court finds he is an "Indian" pursuant to section 1152.
Doc. 19 at 1 (emphasis added).
As argued by the government, the Court is also mindful of the fact that there is, arguably, a risk that no government entity (i.e., federal, state, or tribal) would prosecute Defendant for certain criminal violations occurring on the Fort Mojave Indian Reservation were the Court to conclude he is an "Indian".
Simply put:
Daniel Donovan, John Rhodes, "Who is an Indian? History Creates a Legal Labyrinth and Defense Opportunities", Champion, 26 May 30, 30 (2012). Although phrased in slightly different terms, the court in Bruce recognized a similar problem. See 394 F.3d at 1230.
This case presents a unique factual and jurisdictional conundrum apparently of first impression. Notwithstanding the 1990 amendments to the Indian Civil Rights Act, codified at 25 U.S.C. § 1301 et seq., the Fort Mojave Indian Tribe has declined to prosecute a defendant who may be an "Indian" and the Tribe's decision is apparently based solely on the defendant's lack of tribal membership, i.e., the Tribal Court has determined it does not have jurisdiction under its laws.
A resolution of this issue and the scope of immunity provided by 18 U.S.C. § 1152 requires a brief divergence into history and certain principals of Indian law. The Mojave people traditionally lived along the Colorado River from present day Yuma, Arizona, to the Parker area. In 1865 the Colorado River Indian Reservation was created, forcing many of the Chemehuevi, Navajo, Hopi, and Mojave, each distinct and separate cultures residing along the Colorado River, to reside together upon the newly-created reservation.
From 1890 through 1911 the Fort Mojave Indian Reservation was established and at times modified, creating a new reservation for the Mojave Tribe near Needles, California, and spread over lands located in Arizona, California, and Nevada. See Fort Mojave Indian Tribe v. United States, 23 Cl.Ct. 417, 420 n. 1 (1991). The Fort Mojave Indian Tribe was formally organized under the Indian Reorganization Act of 1934 and established a system of self-governance by way of a constitution and business charter which cannot be revoked or surrendered except by an act of Congress. See Fort Mojave Tribe v. County of San Bernardino, 543 F.2d 1253, 1255 (9th Cir.1976). In Article II of their Constitution the Ft. Mojave Indian Tribe established who may become a member of the tribe. See Doc. 16, Exh. A. The tribe also established a Law and Order Code. Id., Exh. B. Section 102 of the Code indicates the Tribal Court shall have subject matter jurisdiction of all civil causes of action and criminal jurisdiction of all violations of the Code or tribal ordinances, subject to any limitations, restrictions or exceptions imposed by the "Constitution or laws of the United States."
It has been federal policy that the American Indian has a special status in the United States and is entitled to special protection.
But Congress' policy toward Indians has varied greatly over time.
Lara, 541 U.S. at 202, 124 S.Ct. at 1634.
In 1871 Congress ended the practice of entering into new treaties with American Indian tribes but preserved those treaties then in existence. See id., 541 U.S. at 201, 124 S.Ct. at 1634. While Congress has the power to abrogate or modify treaty rights, it may do so only if it indicates clearly that is what it is doing. See Menominee Tribe of Indians v. United States, 391 U.S. 404, 405, 88 S.Ct. 1705, 1707, 20 L.Ed.2d 697 (1968). Judicially made "Indian law" draws primarily upon the treaties executed by the Executive Branch of the federal government and legislation passed by Congress. Lara, 541 U.S. at 206, 124 S.Ct. at 1636-37. As noted supra, "Federal Indian policy is, to say the least, schizophrenic. And this confusion continues to infuse federal Indian law ..." Id., 541 U.S. at 219, 124 S.Ct. at 1644 (Thomas, J., concurring).
The Supreme Court has recognized that over time the sophistication of and resources available to tribal courts can vary dramatically but the Constitution does not dictate the "metes and bounds" of tribal autonomy. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 197, 205, 210-12, 98 S.Ct. 1011, 1019, 1021-22, 55 L.Ed.2d 209 (1978), superseded by statute, see Lara, 541 U.S. at 207, 124 S.Ct. at 1637. Similarly, as most recently addressed in Title IX of the "Violence Against Women Reauthorization Act of 2013", Congress recognizes the numerous difficulties tribal courts encounter financially and otherwise in addressing crime in Indian country. See Pub. L. No. 113-4, 127 Stat. 54 (Mar. 7, 2013).
It is against this confusing and sometimes contradictory area of the law that the scope of the immunity granted by section 1152 must be measured.
In the seminal case of Duro v. Reina, a non-member Indian challenged the Salt River Indian tribe's assertion of jurisdiction over a crime committed on the Salt River Indian Reservation. See 495 U.S. 676, 689-92, 110 S.Ct. 2053, 2062-63, 109 L.Ed.2d 693 (1990). The Supreme Court reversed the Ninth Circuit Court of Appeals' conclusion that the tribal court could exercise jurisdiction over a non-member Indian (an enrolled member of a California tribe) alleged to have murdered a 14-year-old nonmember Indian (a member of the Gila River tribe), on the Salt River Indian Reservation. The Supreme Court held that, as a matter of federal common law, Indian tribes had no historic inherent authority to criminally prosecute non-member Indians in tribal court.
While addressing a "jurisdictional void" argument, the Supreme Court in Duro pondered without deciding whether section 1152 only applied to Indians of tribal membership:
495 U.S. at 696-98 & n. 3, 110 S.Ct. at 2065-66 & n. 3 (emphasis added).
Several months after the Supreme Court's Duro decision was issued and in direct response to the opinion, Congress amended the Indian Civil Rights Act, but not section 1152 of the federal criminal code. The amendments explicitly granted the tribes the permissive authority to prosecute non-member Indians in tribal court. The Congressional amendment is often referred to as the "Duro fix." In amending ICRA Congress explicated that, contrary to the Supreme Court's holding in Duro, the tribes had always possessed the authority to prosecute nonmember Indians, under the federal common law doctrine of "inherent" sovereignty. See 25 U.S.C. § 1301(1)(2). See also United States v. Enas, 255 F.3d 662 (9th Cir.2001) (en banc) (concluding that, because Duro was an expression of federal common law, Congress could legitimately "overrule" the holding of Duro through the exercise of legislative power).
In his dissent from the Ninth Circuit Court of Appeals' majority opinion in Duro, which majority opinion was overruled by the Supreme Court, Judge Sneed opined:
Duro v. Reina, 851 F.2d 1136, 1150-51 (9th Cir.1987) (emphasis added), rev'd by Duro v. Reina, 495 U.S. 676, 689-92, 110 S.Ct. 2053, 2062-63, 109 L.Ed.2d 693 (1990). See also Duro v. Reina, 860 F.2d 1463, 1469-70 (9th Cir.1988) (order denying en banc review, Kozinski, J., Leavy, J., and Trott, J., concurring in Judge Sneed's dissent).
Since Duro, the Ninth Circuit Court of Appeals has affirmed that a recognized Indian tribe may prosecute and punish an enrolled member of another tribe for crimes against a tribal member. See, e.g., Means, 432 F.3d at 934-35. However, commentators have noted the continued potential for a "jurisdictional void," where tribes do not have jurisdiction to prosecute a non-member "Indian" for a misdemeanor crime and the federal government does not have jurisdiction to try the defendant because they are found to be an "Indian" for purposes of section 1152, notwithstanding the fact that no tribe acknowledges their Indian status. See Gideon M. Hart, "A Crisis in Indian Country: An Analysis of the Tribal Law and Order Act of 2010," 23 Regent U.L.Rev. 139, 139, 139 (2010-2011); Daniel Donovan, John Rhodes, "Who is an Indian? History Creates a Legal Labyrinth and Defense Opportunities", Champion, 26 May 30 (2012).
Bolstering the statutory and common-law sources of federal jurisdiction over some crimes in Indian Country, the federal courts have noted that, through its treaties with various federally-recognized tribes, the United States has assumed an obligation to remove "bad men" from the reservations.
Treaty between the United States of America and the Navajo Tribe of Indians, June 1, 1868, U.S.-Navajo, 15 Stat. 667. While the historical record regarding the treaties is sparse it is reported that the "bad men" clauses were included in the treaties so that, if the tribes lived in peace with their neighbors, the federal government would stand between the tribal members and "other Indians and Mexicans" to ensure the peace. See Tsosie, 825 F.2d at 400 n. 2.
In Means, the Ninth Circuit stated:
432 F.3d at 936-37 (emphasis added).
As a practical matter, in light of the Indians' protected status under federal law, the government's treaty obligations, and as a matter of comity to the tribal courts, and as a rational interpretation of the accepted precepts governing tribal sovereignty over tribal members and crimes committed against tribal members on Indian reservations by those acknowledged to be of Indian ancestry, the Court concludes that in using the term "Indian" in section 1152 Congress intended it to mean an Indian who is an enrolled member of a federally-recognized tribe.
Oliphant, 435 U.S. at 206, 98 S.Ct. at 1019-20.
Since its first enactment in 1817 (3 Stat. 383), additions added in 1854 (10 Stat. 270), sequent codification in 18 U.S.C. § 1152, and the enactment and amendment of the Indian Civil Rights Act, the language of section 1152 has never been amended, yet the government has entered into nine separate treaties with thirteen separate and distinct tribes obligating the federal government to remove all "bad men" from those tribes' lands and prosecute them in federal courts when requested by the Tribe, exactly what occurred in this matter. In order to give validity to those treaties, as the Court is obligated to do, and which Congress has not repealed, and even though the treaties are with tribes other than the Fort Mojave Indian Tribe, the use of the term "Indian" in section 1152 must, as Judge Sneed concluded, mean an Indian who is a tribal member. As such, should this Court have concluded Defendant was an "Indian" section 1152 would not grant him immunity from federal prosecution as he is not a tribal member.
Accordingly,
The Court notes that whether the jurisdictional issue is resolved pursuant to Rule 12(b) or as a question of fact at trial may impact upon the standard of review applicable on appeal. See United States v. Cruz, 554 F.3d 840, 843-46 (9th Cir.2009). Therefore, the Court concludes the determination of Defendant's Indian status pursuant to Bruce is a question of fact for trial and the Court will make Rule 23(c) findings of fact. The question of the scope of immunity provided by 18 U.S.C. § 1152 is a question of law and will be decided pursuant to Rule 12(b).
18 U.S.C. § 1151.
United States v. Maggi, 598 F.3d 1073, 1081 n. 3 (9th Cir.2010).
United States v. Juvenile Male, 666 F.3d 1212, 1215 (9th Cir.2012).
