Thursday, September 19, 2013

United States v. Zepeda, No. 10-10131 (9-19-13) (Paez with Fernandez; dissent by Watford).

The 9th returns to Indian jurisdiction, again, and this time considers what it takes to prove that a tribe is federally recognized. The 9th holds that whether a tribe is federally recognized is a question of law. The court decides. However, it is still an element to be found by the jury whether the defendant is a member of that tribe. The "Tohono O'odham Tribe of Arizona" is federally registered and appears on the BIA federal registry list. However, a list does not mean the defendant is actually a blood member. Here, a certificate of tribal enrollment, properly admitted under a stipulation, states that the defendant is 1/4 member of the Tohono O'odham Nation". Given that this tribe straddles both Arizona and Mexico, the government had to prove that he was a member of the "Tohono O'odham Nation of Arizona," which is how the tribe is federally registered. No such evidence was admitted. As such, the conviction is reversed. Watford dissents, arguing that the jury could reasonably have inferred that he belonged to that tribe.


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