United States v. Damien Zepeda, 705 F.3d 1052

Background

Zepeda and his brothers shot occupants at a Peters residence on the Ak-Chin Reservation in Arizona, leading to a nine-count federal indictment for offenses including conspiracy to commit assault and use of a firearm during a crime of violence.
The indictment alleged Zepeda was an Indian under 18 U.S.C. § 1153, and he was convicted on all counts after a jury trial.
Section 1153 grants federal jurisdiction for certain crimes by Indians in Indian country; Indian status is a two-pronged jurisdictional element (bloodline from a federally recognized tribe, and tribal/government recognition as Indian).
A Tribal Enrollment Certificate (Gila River Enrollment/Census Office Certified Degree of Indian Blood) was admitted at trial via stipulation, identifying Zepeda as 1/4 Pima and 1/4 Tohono O’Odham, and as an enrolled member of the Gila River Indian Community.
No other evidence connected Zepeda’s bloodline to a federally recognized tribe; the government presented no evidence that the Pima or Tohono O’Odham tribes were federally recognized in fact for purposes of § 1153.
The panel reversed Zepeda’s convictions under § 1153 (counts 2–9) and remanded for resentencing; conspiracy conviction under 18 U.S.C. § 371 remained.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the Tribal Enrollment Certificate sufficient to prove Indian status under Bruce?	Zepeda argues blood connection to a federally recognized tribe is not proven by the Certificate.	Government contends the Certificate establishes bloodline and enrollment, satisfying the Bruce test.	No; the Certificate alone does not prove blood from a federally recognized tribe beyond reasonable doubt.
Should federal recognition be decided by the court or the jury in § 1153 prosecutions?	Zepeda argues recognition is a jury question; the majority should follow the district court’s role.	Government and dissent argue recognition is a jury issue under Bruce.	The court held that whether a tribe is federally recognized is a legal question for the court to decide.
Was admission of the Tribal Enrollment Certificate proper under the Confrontation Clause and stipulation?	Waiver of confrontation rights via stipulation could be unlawful if involuntary.	Stipulation and counsel’s strategy may permissibly waive confrontation rights as trial tactic.	District court did not plainly err; stipulation admission was proper.
May the government rely on judicial notice of the BIA’s list of federally recognized tribes to satisfy the first Bruce prong on appeal?	Jury should decide Indian status; formal judicial notice cannot substitute for proof.	Judicial notice of the BIA list is appropriate for status as a matter of law.	Judicial notice cannot substitute for jury findings; government failed to prove recognition beyond reasonable doubt.

Key Cases Cited

United States v. Bruce, 394 F.3d 1215 (9th Cir. 2005) (two-prong Bruce test for Indian status)
United States v. Cruz, 554 F.3d 840 (9th Cir. 2009) (reaffirms Bruce two-prong approach)
United States v. Maggi, 598 F.3d 1073 (9th Cir. 2010) (bloodline must derive from federally recognized tribe; flat denial if not)
LaPier v. McCormick, 986 F.2d 303 (9th Cir. 1993) (federal recognition determined by BIA list; threshold issue)
United States v. James, 987 F.2d 648 (9th Cir. 1993) (evidence on a required factual element must be presented to jury)
United States v. Heath, 509 F.2d 16 (9th Cir. 1974) (termination of tribal status affects jurisdiction under § 1153)
United States v. Gipe, 672 F.2d 777 (9th Cir. 1982) (territorial jurisdiction rule: court can decide jurisdictional status as law; locus of act for jury)
United States v. Warren, 984 F.2d 325 (9th Cir. 1993) (locus of crime vs. jurisdictional status distinguished in trial)
LaBuff v. United States, 658 F.3d 873 (9th Cir. 2011) (general principle on tribal jurisdiction in Indian country)