U.S. v. Maggi / U.S. v. Mann, Jr., Nos. 08-30223 / 09-30052 (3-16-10) (McKeown joined by Hawkins and Bybee). These are interesting, and important, cases when it comes to crimes arising from Indian jurisdiction, the Major Crimes Act, and the element of whether the defendant is an Indian. Under the Major Crimes Act, 18 U.S.C. 1153, federal jurisdiction requires that the defendant be an Indian because jurisdiction is premised not on tribal self-regulation but on federal regulation of criminal conduct involving Indian interests. U.S. v. Antelope. There is no definition of who is an Indian; rather, the 9th has developed a framework for evaluating Indian status involving (1) the presence of some Indian blood; and (2) tribal or government recognition. The leading 9th cases are U.S. v. Bruce, 394 F.3d 1215 (9th Cir. 2005) and more recently, U.S. v. Cruz, 554 F.3d 840 (9th Cir. 2009).

The case here involved an aggravated sexual assault (Mann) and an assault with a dangerous weapon (Maggi). Each was separate. Each defendant argued that he was not an Indian. The 9th agreed for each, but for different reasons.

In Mann's case, Mann was a member of a tribe NOT recognized by the federal government. The tribe has a history; the tribe was recognized by the state; but unless the federal government recognizes the tribe, he is not considered an Indian for federal jurisdictional purposes. The reasoning is that under Antelope, the determination of who is an "Indian" is political, not racial or ethnic.

In Maggi's case, the defendant argued that he only had 1/64 Indian blood. This meant that only one great-great-great-great-great-grandparent was a full-blooded Indian, and the other 63 had no Indian blood. The 9th considers what quantum of blood is required to be an Indian, a determination the court obviously had not taste for. Previous 9th cases had gone as low as 1/8th. The 1/64th was a cause of concern. The 9th, however, sidestepped this issue because it looked at the second prong, which was tribal and government recognition, and found this was wanting. The 9th compared the contacts to Cruz, where the recognition was found to be so weak as to fail. Here, the defendant had status as an attenuated limited descendant from a tribe; had one instance of using the Indian Health Services; had been prosecuted in tribal court but with no evidence of the results, or the determination of status; and second hand testimony that he had participated in some tribal rituals. This sparse collection, which did not include enrollment, employment, education, or further involvement, could not support the second prong.

The 9th, therefore, vacated the convictions and reversed the denial of the motions to acquit.

U.S. v. Gonzalez, No. 07-30098 (3-16-10). The 9th denies a request for a rehearing. Usually this would not be noted in an opinion summary. However, the denial led to a spirited concurrence, and a roaring dissent. The case involved a remand from the Supremes concerning a Gant issue (search of vehicle incident to arrest). The panel found that the search was not incident to arrest, and that Gant applied. First, the dissent is examined. The dissent, written by Bea, and joined by O'Scannlain, Kleinfeld, Gould, Tallman, Bybee, and Callahan, accuses the panel and 9th of disregarding Herring and imposing the exclusionary rule on a good faith mistake by the police. The costs, bemoans the dissent, are too high, and that reliance on a line of cases permitting searches of cars when there was an arrest should not be taken out on the officers. The concurrence to the denial of en banc review, lashes out against the dissentt to make sure that the public does not get a distorted view of the panel's decision. The concurrence, authored by B. Fletcher, and joined by Paez, and N. Smith, accuses Judge Bea (named!) of presenting "a distorted view" of the decision, and that his use of Herring and Illinois v. Krull "is wrong." It is rare that such calling out occurs, but the issues are engaged here. The concurrence points out that the dissent re-argues the losing minority in Gant and that its reliance on Krull concerned reliance on a statute and not the misreading of precedent that was the basis of Gant. Moreover, the panel followed established precedent in applying new Fourth Amendment decision to appeals in the pipeline.