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«On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit PETITION FOR A WRIT OF CERTIORARI MICHELE R. MORETTI ...»

-- [ Page 1 ] --

No.

In the Supreme Court of the United States

DAMIEN ZEPEDA,

Petitioner,

v.

UNITED STATES,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

MICHELE R. MORETTI CHARLES A. ROTHFELD

7671 S.W. 117th Place Counsel of Record

ANDREW J. PINCUS

Lake Butler, FL 32054

PAUL W. HUGHES

(386) 496-0701

MICHAEL B. KIMBERLY

EUGENE R. FIDELL

Mayer Brown LLP Yale Law School Supreme Court Clinic 1999 K Street, NW Washington, DC 20006 127 Wall Street (202) 263-3000 New Haven, CT 06511 crothfeld@mayerbrown.com (203) 432-4992 Counsel for Petitioner i

QUESTIONS PRESENTED

The Indian Major Crimes Act, 18 U.S.C. § 1153, makes it a federal crime for an “Indian” to commit any one of thirteen enumerated acts in “Indian country.” In this case, the en banc Ninth Circuit held that an element of the offense in prosecutions under this statute is proof that the defendant has “Indian blood,” whether or not that blood tie is to a federally

recognized tribe. The question presented is:

Whether, as construed by the Ninth Circuit, Section 1153 impermissibly discriminates on the basis of race.

ii

TABLE OF CONTENTS

Page Questions Presented

Table of Authorities

Opinions Below

Jurisdiction

Constitutional and Statutory Provisions Involved

Statement

A. Federal Indian criminal law.

B. Proceedings below

Reasons for Granting the Petition

A. The Ninth Circuit’s decision—which recognizes a naked racial classification as an element of a Section 1153 offense—is wrong

B. The decision below creates a conflict in the lower courts.

C. The question presented is important.............23 Conclusion

Appendix A – Ninth Circuit en banc decision (July 7, 2015)

Appendix B – Ninth Circuit panel decision (September 19, 2013)

Appendix C – Criminal judgment (March 22, 2010)

iii

TABLE OF AUTHORITIES

Page(s) Cases Ex parte Crow Dog, 109 U.S. 556 (1883)

Keeble v. United States, 412 U.S. 205 (1973)

Loving v. Virginia, 388 U.S. 1 (1967)

McLaughlin v. Florida, 379 U.S. 184 (1964)

Montana v. United States, 450 U.S. 544 (1981)

Morton v. Mancari, 417 U.S. 535 (1974)

Porter v. Nussle, 534 U.S. 516 (2002)

Rice v. Cayetano, 528 U.S. 495 (2000)

Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987)

Scrivner v. Tansy, 68 F.3d 1234 (10th Cir. 1995)

Solem v. Bartlett, 465 U.S. 463 (1984)

State v. Reber, 171 P.3d 406 (Utah 2007)

United States v. Antelope, 430 U.S. 641 (1977)

United States v. Broncheau, 597 F.2d 1260 (9th Cir. 1979)

iv TABLE OF AUTHORITIES—continued

–  –  –

United States v. Bruce, 394 F.3d 1215 (9th Cir. 2005)

United States v. Dodge, 538 F.2d 770 (8th Cir. 1976)

United States v. Kagama, 118 U.S. 375 (1886)

United States v. Maggi, 598 F.3d 1073 (9th Cir. 2010)

United States v. Merriam, 263 U.S. 179 (1923)

United States v. Rogers, 45 U.S. 567 (1846)

United States v. Stymiest, 581 F.3d 759 (8th Cir. 2009)

United States v. Torres, 733 F.2d 449 (7th Cir. 1984)

Worcester v. Georgia, 31 U.S. 515 (1832)

Zadvydas v. Davis, 533 U.S. 678 (2001)

STATUTES & LEGISLATIVE MATERIALS

18 U.S.C.

§ 13

§ 1151

§ 1152

§ 1153

v TABLE OF AUTHORITIES—continued

–  –  –

An Act To Provide for the Removal of the Flathead and Other Indians from the Bitter Root Valley, in the Territory of Montana, ch. 308, § 1, 17 Stat. 226 (1872)

Bureau of Ed., Indian Education and Civilization, S. Exec. Doc. No. 95 (1885)

Bureau of Ethnology, Fifth Annual Report, H. Mis. Doc. No. 167 (1884)

Ch. 101, § 2, 12 Stat. 427 (1862)

H.R. 4057, 48th Cong. § 3 (1884)

S. Rep. 744, 45th Cong. (1879)

S. Rep. 1802, 45th Cong. (1879)

Secretary of the Interior, Decisions on Rights of Indians to Impose Taxes in Indian Territory, S. Exec. Doc. No.

74 (1878)

Select Comm. To Examine into the Condition of the Sioux & Crow Indians, Condition of Indian Tribes in Montana and Dakota, S. Rep. No.

283 (1884)

MISCELLANEOUS

Benjamin Vaughan Abbott, Dictionary of Terms and Phrases Used in American or English Jurisprudence 577 (1879)

vi TABLE OF AUTHORITIES—continued

–  –  –

William C. Anderson, A Dictionary of Law Consisting of Judicial Definitions and Explanations of Words, Phrases, and Maxims, and an Exposition of the Principles of Law 535 (1889)

Cohen’s Handbook of Federal Indian Law § 3.03 (Nell Jessup Newton ed., 2005)

Exec. Office of U.S. Attorneys, U.S.





Attorneys’ Annual Statistical Report:

Fiscal Year 2013

Ninth Circuit Manual of Model Criminal Jury Instructions § 8.113

U.S. Census Bureau, Population Div., Annual Estimates of the Resident Population by Sex, Race Alone or in Combination, and Hispanic Origin for the United States, States, and Counties: April 1, 2010 to July 1, 2014 (June 2015)

U.S. Dep’t of Justice, Indian Country Investigations and Prosecutions

U.S. Dep’t of Justice, Tribal Crime Data Collection Activities, 2015

Who Is an Indian?, U.S. Attorneys’ Manual § 686

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Damien Zepeda, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the en banc court of appeals (App., infra, 1a-34a) is reported at 792 F.3d 1103. The opinion of the panel (App., infra, 35a-59a) is reported at 738 F.3d 201. That panel opinion replaced an earlier panel decision reported at 705 F.3d 1052. The district court’s criminal judgment (App., infra, 60a-68a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on July 7, 2015. App., infra, 1a. On September 28, 2015, Justice Kennedy extended the time for the filing of a petition for certiorari until November 19,

2015. The jurisdiction of this Court rests on 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

In relevant part, the Fifth Amendment to the

U.S. Constitution provides:

No person shall * * * be deprived of life, liberty, or property, without due process of law.

Title 18, U.S. Code § 1152, the “Indian General

Crimes Act,” provides:

Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.

This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.

Title 18, U.S. Code § 1153(a), the “Indian Major

Crimes Act,” provides:

Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnapping, maiming, a felony under chapter 109A, incest, a felony assault under section 113, an assault against an individual who has not attained the age of 16 years, felony child abuse or neglect, arson, burglary, robbery, and a felony under section 661 of this title within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.

STATEMENT

This Court has long held that Congress has the constitutional authority to enact “legislation that singles out Indians for particular and special treatment.” Morton v. Mancari, 417 U.S. 535, 554-555 (1974). That authority derives from “the unique legal status of Indian tribes,” and the special treatment accorded individual Indians therefore is permissible when directed “to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities.” Id. at 551, 554. In this context, permissible legislation singling out Indians “is not directed towards a ‘racial’ group consisting of ‘Indians’;

instead, it applies only to members of ‘federally recognized’ tribes.” Id. at 553 n.24.

In this case, however, the en banc Ninth Circuit gave a very different construction to the Indian Major Crimes Act (“IMCA”), 18 U.S.C. § 1153, which makes it a federal crime for an “Indian” to commit specified offenses in Indian country.1 In the decision below, that court held that a discrete element of the Section 1153 offense is that the defendant be an “Indian” in a racial sense, in addition to and wholly apart from the defendant’s connection with a federally recognized Indian tribe. As Judge Kozinski explained, that “holding transforms the Indian Major Crimes Act into a creature previously unheard of in federal criminal law: a criminal statute whose application turns on whether a defendant is of a particular race.” App., infra, 25a-26a. For the reasons explained below, that extraordinary holding should not stand.

A. Federal Indian criminal law.

Criminal law in Indian country is a patchwork of federal, state, and tribal legal regimes. In 1817, Congress enacted the predecessor to what is now the InIndian country” is an expressly defined term. 18 U.S.C.

§ 1151.

dian General Crimes Act, 18 U.S.C. § 1152. That statute extends the general criminal laws of the United States to Indian country, but exempts conduct where an “Indian” is both the offender and the victim. See generally United States v. Bruce, 394 F.3d 1215, 1218 (9th Cir. 2005) (recounting pertinent statutory history).

In United States v. Rogers, 45 U.S. 567 (1846), this Court considered the meaning of the term “Indian” in what is now Section 1152. The Court held that the term Indian “does not speak of members of a tribe, but of the race generally—of the family of Indians.” Id. at 573. The Court thus found that a “white man” who had been adopted by the Cherokee nation and was a citizen of that tribe could not qualify as “Indian” for purposes of the Indian General Crimes Act.

Subsequently, in Ex parte Crow Dog, 109 U.S.

556 (1883), the Court considered an Indian defendant who had been sentenced to death by a federal court for murdering another Indian on tribal land.

Reasoning that the Indian General Crimes Act did not extend to crimes between Indians, the Court granted a writ of habeas corpus.

In response, Congress enacted, in 1885, the Indian Major Crimes Act, currently codified at 18 U.S.C.

§ 1153. See Keeble v. United States, 412 U.S. 205, 209 (1973) (“The Major Crimes Act was passed by Congress in direct response to the decision of this Court in [Crow Dog].”). Section 1153 provides federal criminal jurisdiction over specified felonies committed by “Indians” in “Indian country.” But Section 1153 does not define the term “Indian” for purposes of the statute.



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