Court restores conviction, redefining definition of who is Indian in the process

WASHINGTON – A federal appeals court on Tuesday reinstated the conviction of a Gila River tribal member under the Indian Major Crimes Act, redefining its rule for determining who is and is not Indian in the process.

The 9th U.S. Circuit Court of Appeals said prosecutors need only show that a defendant is affiliated with a federally recognized tribe and has a “quantum of Indian blood,” whether from that federally recognized tribe or not, to be subject to prosecution under the Indian crimes act.

In separate concurring opinions, two judges said the court’s reliance on the “degree of Indian blood” would have the effect of applying the law on racial grounds. The ruling dredged up the “sorry history” of days when courts used “blood quantum tests to determine who was a slave and who was free,” they said.

The ruling reinstated the convictions and a 90-year sentence for Damien Zepeda in connection with a 2008 shooting on the Ak-Chin reservation.

According to court documents, Zepeda told two of his brothers on Oct. 25, 2008, that they were going to a party, but they went instead to the home of Dallas Peters and his wife, where Zepeda’s ex-girlfriend, Stephanie Aviles, was living. Zepeda handed a shotgun to one brother and, armed with a handgun himself, went to the front door and asked for Aviles.

She came out, but when she refused to leave with Zepeda, he grabbed her arms, hit her multiple times in the head and knocked her to the ground. When Peters and Aviles’ teenage cousin came to investigate, Zepeda started firing. His brother, standing at another corner of the house, also began firing.

Peters was hit several times, by bullets and buckshot, sustaining what the court called life-threatening wounds before Zepeda and his brothers fled.

Federal officials charged Zepeda with nine counts, including assault, firearms and conspiracy, under the Indian Major Crimes Act, which allows federal prosecutors to try tribal members.

Prosecutors entered evidence that Zepeda was an enrolled member of the Gila River Indian Community and his brothers testified that he was one-fourth Pima and one-four Tohono O’odham, making him at least one-half Indian blood. He was convicted on all nine counts and sentenced to 90 years and three months in prison.

On appeal, a three-judge panel of the circuit court in 2013 overturned most of his convictions, saying federal prosecutors had failed to meet the first prong of a recent two-part test to determine whether a defendant is Native American. That test requires that a person have a “blood quantum” traceable to a federally recognized tribe, as well as membership in or affiliation with a federally recognized tribe.

The full 9th Circuit on Tuesday reversed that decision and said that the first prong was too strict. The proper test is whether a defendant has any Indian blood, the court said, followed by the second requirement that he is affiliated with a federally recognized tribe.

But in a concurring opinion, Judge Alex Kozinski said the majority’s ruling “transforms the Indian Major Crimes Act into a creature previously unheard of in federal law: a criminal statute whose application turns on whether a defendant is of a particular race.”

He said such race-based prosecution violates the equal protection of the 14th Amendment, and rejected the majority’s argument that the second prong of the test makes the application of the Indian crimes act based on political affiliation with a tribe and not solely on race.

“The majority creates a disturbing anomaly in the application of our equal protection law. The majority empowers Congress to distribute benefits and burdens within Indian tribes along purely racial lines,” Kozinki wrote in the concurrence, that was joined by Judge Sandra Ikuta.

Ikuta also wrote a concurrence, in which Kozinski joined, in which she pointed to the country’s “sorry history” of using blood to make race-based distinctions.

“Early in our history, state courts used blood quantum tests to determine who was a slave and who was free,” she said, pointing to miscegenation laws and restrictions on naturalization and land ownership, among others.

Ikuta said that this ruling’s heavy emphasis on the “degree of Indian blood” creates a troubling precedent – one that could be avoided simply removing the blood quantum requirement altogether and focusing only affiliation with a federally recognized tribe.

Zepeda’s attorney could not be reached for comment Tuesday, and officials in the U.S. Attorney’s Office declined comment on the ruling.