US v. Johnny Ellery Smith, No. 17-30248 (5-28-19)(Callahan w/Clifton; Fisher concurring). This is an Indian jurisdiction case. The defendant, an enrolled member of the Warm Springs tribes, was charged in federal court within two state counts for fleeing or attempting to elude a peace officer. He was not charged in tribal court. 

Defendant argues (1) that the Assimilative Crimes Act (ACA) does not apply to Indian Country. He acknowledges precedent but argues that these courts merely assumed applicability and did not directly address it. (2) Even if ACA applies, defendant argues, it is jurisdictionally barred because he could have been prosecuted under tribal law. (3) Lastly, the Major Crimes Act occupies the field of federal jurisdiction for Indian criminal defendants.

The 9th rejects all these arguments. It holds that ACA applies through 18 U.S.C. §§ 7 and 1152. The 9th concludes it does, even assuming other courts, including the Supremes, had never grappled with the issue. The 9th finds jurisdiction under its own analysis of the statutes and from the circuit’s prior precedent.

The 9th holds too that if ACA applies, it is subject to exceptions in the Indian Country Crimes Act. Namely, (1) if an offense is committed by one Indian on another Indian, or property of another Indian; (2) if the defendant had already been punished by the tribe; and (3) if treaty stipulations bar such prosecutions. None of these exceptions apply here. The 9th finds that federal jurisdiction for Indian on Indian crime does not involve victimless offenses, such as occurred here. Further, if a tribe could have brought a charge does not mean there is a bar. The tribe had to charge. Finally, the Major Crimes Act does not bar the charge. Congress extends exclusive federal jurisdiction for certain offenses; it did not preclude ICCA jurisdiction for other offenses. 

Fisher concurs. He agrees that ACA applies. However, rather than find ACA as a general law applicable, subject to ICCA,; he would find it applicable through ICCA. Either way, ACA applies.

Valiant argument by AFPD Conor Husby of FPD Oregon (Portland). The defense arguments are worth pondering in view of the special jurisdiction addled and respect for tribal sovereignty. 

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/28/17-30248.pdf