United States of America v. Damien Zepeda

Damien Zepeda appeals from his convictions and

sentence on one count of conspiracy to commit assault with

a dangerous weapon and to commit assault resulting in

serious bodily injury; one count of assault resulting in serious

bodily injury; three counts of assault with a dangerous

weapon; and four counts of use of a firearm during a crime of

violence. We affirm.

The crimes took place on the Ak-Chin Indian Reservation

in Arizona. The government charged Zepeda under the

Indian Major Crimes Act (“IMCA”), 18 U.S.C. § 1153, which

authorizes federal jurisdiction over certain crimes committed

by Indians in Indian country. To sustain a prosecution under

the IMCA, the government must establish that the defendant

is an Indian within the meaning of that statute. Zepeda

argues, among other things, that the evidence at trial was

insufficient to support the jury’s finding that he was an Indian

under the IMCA.

In United States v. Bruce, 394 F.3d 1215, 1223 (9th Cir.

2005), we laid out a two-part test for establishing a person’s

status as an Indian under the IMCA: the defendant must

(1) have Indian blood and (2) be recognized by a tribe or the

federal government as an Indian. In United States v. Maggi,

598 F.3d 1073, 1080–81 (9th Cir. 2010), decided after

Zepeda’s trial had finished, we added a gloss to both prongs

of the Bruce test, holding that the government must prove that

(1) the defendant has a quantum of Indian blood traceable to

a federally recognized tribe and (2) the defendant is a

member of, or is affiliated with, a federally recognized tribe.

UNITED 6 STATES V. ZEPEDA

In the case now before us, a three-judge panel held that the

government had not presented sufficient evidence to satisfy

the first prong of the Bruce test as modified by Maggi. For

the reasons we explain below, we overrule Maggi. While

Maggi appropriately clarified the second prong of the Bruce

test to require a relationship with a federally recognized tribe,

Maggi erred in extending the federal recognition requirement

to the first prong. We now hold that under the first prong of

the Bruce test the government need only prove that the

defendant has some quantum of Indian blood, whether or not

traceable to a federally recognized tribe. We thus hold that in

order to prove Indian status under the IMCA, the government

must prove that the defendant (1) has some quantum of Indian

blood and (2) is a member of, or is affiliated with, a federally

recognized tribe. We hold further that under the IMCA, a

defendant must have been an Indian at the time of the charged

conduct, and that, under the second Bruce prong, a tribe’s

federally recognized status is a question of law to be

determined by the trial judge.

We hold that the evidence at trial was sufficient to support

the finding that Zepeda was an Indian within the meaning of

the IMCA at the time of his crimes. We reject Zepeda’s other

challenges to his convictions and sentence.

I. Background

We recount the evidence in the light most favorable to the

jury’s verdict. See United States v. Hicks, 217 F.3d 1038,

1041 (9th Cir. 2000). On October 25, 2008, Zepeda and his

brother Matthew were drinking beer and malt liquor at

Zepeda’s mother’s house in Maricopa, Arizona. Zepeda

asked Matthew if he wanted to go to a party, and Matthew

agreed. Zepeda then called another of his brothers, Jeremy,

UNITED STATES V. ZEPEDA 7

and asked if he wanted to go to the party. Jeremy also

agreed.

An unidentified driver picked up Zepeda, Matthew, and

Jeremy. Zepeda told the driver to take them to a house

located on the Ak-Chin Reservation. The house belonged to

Dallas Peters and his wife, Jennifer Davis. Zepeda wanted to

see his ex-girlfriend, Stephanie Aviles, who was at Peters’s

house with her sixteen-year-old cousin, “C”.

In the car, Zepeda and his brothers drank beer and

smoked marijuana. Matthew and Jeremy still thought they

were going to a party. The driver dropped them off near

Peters’s house. Matthew testified at trial that Zepeda told

Jeremy to “grab something from the seat.” Jeremy “wasn’t

paying attention,” so Matthew reached under the car seat and

pulled out a shotgun. Jeremy testified that Zepeda got out of

the car holding a handgun and a shotgun, and that Zepeda

tried to give the shotgun to Jeremy. When Jeremy refused,

Zepeda gave the shotgun to Matthew. Zepeda told Matthew

to fire the shotgun if he heard shots.

Matthew and Jeremy walked to the west side of Peters’s

house, and Zepeda approached the front door. Jeremy

testified that he saw Zepeda carrying a handgun. At this

point, Jeremy testified, he realized they were not at a party.

Jeremy walked away toward the main road because he did not

want to “get involved with something that . . . [was] going to

jeopardize me and my family.” Matthew stayed by the side

of the house with the shotgun.

Zepeda knocked on the front door, and Peters answered.

Zepeda asked to talk to Aviles, who came outside and walked

with Zepeda to the northeast corner of the house. Zepeda

UNITED 8 STATES V. ZEPEDA

asked Aviles to leave with him. When she refused, he

grabbed her arms. She tried to push him away and felt what

she thought was a gun in his pocket. From inside the house,

C heard Zepeda and Aviles “getting louder,” and she went

outside to check on Aviles. Aviles turned around to return to

the house, and Zepeda hit her in the head multiple times with

something hard. Aviles fell face-down on the ground.

Zepeda pulled out a handgun and pointed it at C. She ran

away down the east side of the house. She heard gunshots.

Peters, who was urinating off his back porch at the time,

heard the gunshots and walked to the southeast corner of the

house. He saw C running toward him. He “grabbed her,

pulled her in, like [to] shield her.” While holding C, Peters

was shot in the shoulder. He testified, “I didn’t feel the

round, but I seen blood come out so I knew I had to be shot.”

C testified that she saw Zepeda shooting from about forty feet

away. “[T]he shooting kept going and going,” she testified.

“I had blood all on my back and I thought I got shot and

Dallas said, ‘You’re okay. Just—I got shot. Just run. Please

just run.’” She ran to the back door of the house and went

inside.

At about the time Zepeda started shooting, Matthew fired

the shotgun toward the backyard. Matthew then walked into

the backyard and fired the shotgun in Peters’s direction.

Matthew testified that he did not see Peters when he fired the

shotgun. Peters tried to run toward the front of the house, but

he “hear[d] shots going past [his] ears from that way.” He

saw Matthew “fiddling [with the gun] with it pointed down.”

Peters ran toward Matthew and tried, unsuccessfully, to

disarm him.

UNITED STATES V. ZEPEDA 9

Peters returned to the southeast corner of the house, where

he saw Zepeda. Zepeda had lowered his gun, either because

it had jammed or because he was reloading. Peters

“rush[ed]” at Zepeda and “grabbed the gun.” Peters pulled

the trigger around twelve times to “get rid of the bullets.”

After the gun was empty, Peters let go. Zepeda ran to the

west side of the house. He caught up with Matthew and

Jeremy, and the three men fled.

After the shooting started, Aviles stood up and ran into

the house. According to C,

[Aviles] was crying and she asked what

happened and where Dallas was and if

everybody was in the house and if we were all

okay. And we ran to the hallway where

Jennifer was, Dallas’s wife, and she was

crying. And the whole time we were in there

we could hear gunshots.

We stood in the hallway for probably

around ten minutes until the doorbell kept

ringing . . . and Jennifer finally went and

opened the door and Dallas came inside and

collapsed on the floor and he was covered in

blood.

Peters was severely injured in the shooting. He had

numerous gunshot wounds, including life-threatening wounds

to his wrist and upper thigh. He had many small buckshot

wounds in his torso. He spent more than a month in the

hospital and underwent more than eight surgeries.

UNITED 10 STATES V. ZEPEDA

The government charged Zepeda, Matthew, and Jeremy

in connection with the shooting. Matthew pled guilty to

assault resulting in serious bodily injury and to use of a

firearm during a crime of violence. Jeremy pled guilty to

misprision of a felony. The government charged Zepeda with

nine counts: (1) one count of conspiracy to commit assault

with a dangerous weapon and to commit assault resulting in

serious bodily injury, in violation of 18 U.S.C. §§ 1153, 371,

and 2; (2) one count of assault resulting in serious bodily

injury against Peters, in violation of 18 U.S.C. §§ 1153,

113(a)(6), and 2; (3) three counts of assault with a dangerous

weapon against Peters, Aviles, and C, in violation of

18 U.S.C. §§ 1153, 113(a)(6), and 2; and (4) four counts of

use of a firearm during a crime of violence against Peters,

Aviles, and C, in violation of 18 U.S.C. §§ 924(c)(1)(A) and

2. Zepeda went to trial on all nine counts.

To prove that Zepeda was an Indian within the meaning

of the IMCA, the government introduced into evidence a

document titled “Gila River Enrollment/Census Office

Certified Degree of Indian Blood” (“Enrollment Certificate”).

Detective Sylvia Soliz, a detective for the Ak-Chin Police

Department, testified that an Enrollment Certificate is “a

piece of paper confirming through the tribe that . . . this

person is an enrolled member of their tribe and . . . meet[s]

the blood quantum.” She testified that enrollment certificates

may be used to determine whether a person is eligible to

receive benefits, such as housing and medical care, from the

tribe. The government and Zepeda’s attorney stipulated that

the Enrollment Certificate “may be presented at trial without

objection,” and that its “contents are stipulated to as fact.”

Zepeda’s Enrollment Certificate stated that Zepeda was

“an enrolled member of the Gila River Indian Community.”

UNITED STATES V. ZEPEDA 11

It listed Zepeda’s “blood degree” as one-fourth Pima and onefourth

Tohono O’Odham, for a total of one-half Indian blood.

Matthew also testified about Zepeda’s Indian status. He

testified that Zepeda is half Indian, with blood from the

“Pima and Tiho” tribes. (Matthew may have said “T.O.,” for

Tohono O’Odham, which was then transcribed as “Tiho.”)

Matthew testified that Zepeda also is “at least half Native

American.” He testified that his own Indian heritage comes

from his father, and that he and Zepeda have the same father

and mother.

At the close of the government’s case-in-chief, Zepeda

moved for a judgment of acquittal because of insufficient

evidence. The district court denied the motion. Zepeda

renewed his motion at the close of evidence, and the district

court again denied it. The court instructed the jury that, in

order to convict, it needed to find that Zepeda was an Indian.

The court did not instruct the jury how to make that finding.

Neither the government nor Zepeda’s lawyer objected to this

instruction or requested that the court provide the jury with

more information about making the finding of Indian status.

The jury convicted Zepeda on all counts. The district

court sentenced Zepeda to a prison term of ninety years and

three months. Zepeda appealed, challenging his convictions

and sentence on a number of separate grounds. A three-judge

panel of this court affirmed Zepeda’s conviction for

conspiracy and reversed his convictions on the other eight

counts. United States v. Zepeda, 738 F.3d 201, 214 (9th Cir.

2013); United States v. Zepeda, 506 F. App’x 536, 537–38

(9th Cir. 2013). The panel held that the government

introduced insufficient evidence to support the jury’s finding

that Zepeda was an Indian. Zepeda, 738 F.3d at 213. It

rejected all of Zepeda’s other arguments challenging his

UNITED 12 STATES V. ZEPEDA

convictions. Id. at 208; Zepeda, 506 F. App’x at 538–39. It

did not reach Zepeda’s argument that his sentence was

unreasonable.

We granted rehearing en banc. United States v. Zepeda,

742 F.3d 910 (9th Cir. 2014).

II. Discussion

In this opinion, we address only Zepeda’s arguments

(1) that the government’s evidence was insufficient to support

a jury finding that he was an Indian within the meaning of the

IMCA, and (2) that his sentence was unreasonable. We agree

with the three-judge panel’s reasons for rejecting Zepeda’s

other arguments, and we adopt them as our own. See Zepeda,

738 F.3d at 207–08; Zepeda, 506 F. App’x at 538–39.

A. Sufficiency of the Evidence to Prove Indian Status

1. Indian Status Under the IMCA

The IMCA is one of several statutes addressing “[t]he

exercise of criminal jurisdiction over Indians and Indian

country.” Bruce, 394 F.3d at 1218. In its current form, the

IMCA authorizes federal criminal jurisdiction over

[a]ny 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,

UNITED STATES V. ZEPEDA 13

burglary, robbery, and a felony under section

661 of this title within the Indian country.

18 U.S.C. § 1153(a). Under the IMCA, “the defendant’s

Indian status is an essential element . . . which the

government must allege in the indictment and prove beyond

a reasonable doubt.” Bruce, 394 F.3d at 1229.

As we noted in Bruce, the IMCA does not define

“Indian,” but “courts have ‘judicially explicated’ its

meaning.” Id. at 1223 (quoting United States v. Broncheau,

597 F.2d 1260, 1263 (9th Cir. 1979)). We wrote that “[t]he

generally accepted test for Indian status” under the IMCA

considers ‘“(1) the degree of Indian blood; and (2) tribal or

government recognition as an Indian.”’ Id. (quoting United

States v. Keys, 103 F.3d 758, 761 (9th Cir. 1996)); see

William C. Canby, Jr., American Indian Law in a Nutshell

9–10 (5th ed. 2009); see also United States v. Cruz, 554 F.3d

840, 845–46 (9th Cir. 2009) (quoting the Bruce test). We

understand Bruce’s second prong, “tribal or government

recognition as an Indian,” to require “membership or

affiliation in any federally acknowledged Indian tribe.”

LaPier v. McCormick, 986 F.2d 303, 306 (9th Cir. 1993).

The two-prong Bruce test requires that, in addition to

affiliation with a federally recognized tribe, as specified in

the second prong, a defendant subject to the IMCA must also

have some quantum of Indian blood, as specified in the first

prong. That is, the defendant must have a blood connection

to a “once-sovereign political communit[y].” United States

v. Antelope, 430 U.S. 641, 646 (1977). “The first prong

requires ancestry living in America before the Europeans

arrived.” Bruce, 394 F.3d at 1223. Affiliation with a

federally recognized tribe is relevant only to Bruce’s second

UNITED 14 STATES V. ZEPEDA

prong. The federally recognized tribe with which a defendant

is currently affiliated need not be, and sometimes is not, the

same as the tribe or tribes from which his bloodline derives.

Indeed, in this very case, Zepeda’s Enrollment Certificate

states that he is a member of the Gila River Indian

Community, but it lists his blood as deriving from the Pima

and Tohono O’Odham tribes.

Five years after Bruce, and after trial in this case, we

added a gloss to the Bruce test, based on a broad application

of the premise that Indian status requires “a sufficient

connection to an Indian tribe that is recognized by the federal

government.” Maggi, 598 F.3d at 1078. We held in Maggi

that the tribal federal-recognition requirement applies in both

prongs of the Bruce test. Id. at 1080–81. Accordingly, we

held that the first Bruce prong requires that the defendant’s

“bloodline be derived from a federally recognized tribe,” id.

at 1080, and that the second prong requires “membership or

affiliation with a federally recognized tribe,” id. at 1081

(internal quotation marks omitted). Zepeda argues under

Maggi that the government’s evidence under the first prong

was insufficient to prove that his bloodline derives from a

federally recognized tribe.

Under Bruce, the governing law at the time of Zepeda’s

trial, there was no requirement that an Indian defendant’s

blood be traceable to a federally recognized tribe. Relying on

Bruce, and not anticipating the yet-undecided Maggi, the

government did not present evidence that Zepeda’s Indian

blood derived from a member of a federally recognized tribe.

However, its undisputed evidence showed conclusively that

Zepeda had some quantum of Indian blood. We need not

reach the question whether Zepeda is right that the

government did not introduce sufficient evidence to satisfy

UNITED STATES V. ZEPEDA 15

the definition of “Indian” under Maggi, for we are convinced

that Maggi was wrongly decided.

Maggi drew its federal-recognition requirement from our

decision in LaPier v. McCormick. The defendant in LaPier

was convicted in state court for crimes that occurred within

the Blackfeet Indian Reservation. 986 F.2d at 304. He filed

a petition for habeas corpus, arguing that he was an Indian

and thus should have been tried in federal court under the

IMCA. Id. We rejected his argument, but we did not address

whether he had “shown a significant degree of blood and

sufficient connection to his tribe.” Id. Instead, we held that

he lost under “a simpler threshold question,” whether “the

Indian group with which [he] claim[ed] affiliation [was] a

federally acknowledged Indian tribe.” Id. at 304–05.

Because the tribe in which he was enrolled was not federally

recognized, we held that he was not an Indian under the

IMCA. Id. at 306.

Maggi read LaPier to require federal recognition under

both prongs of the Bruce test. But LaPier required federal

recognition only under Bruce’s second prong. The

“dispositive” question in LaPier was whether “the Indian

group with which LaPier claims affiliation [is] a federally

acknowledged Indian tribe.” Id. at 304–05 (emphasis added).

We wrote that a “defendant whose only claim of membership

or affiliation is with an Indian group that is not a federally

acknowledged Indian tribe cannot be an Indian for criminal

jurisdiction purposes.” Id. at 305 (emphasis added). LaPier’s

discussion of federal recognition thus focused exclusively on

the particular tribe with which the defendant was currently

affiliated. See id. at 304–05.

UNITED 16 STATES V. ZEPEDA

Zepeda contends that Maggi was correctly decided. He

argues, based on United States v. Antelope, 430 U.S. 641

(1977), that if the first prong of the Bruce test requires only

a quantum of Indian blood, without any connection under this

prong to a federally recognized tribe, jurisdiction under the

IMCA will depend upon a racial rather than a political

classification. We disagree. We see nothing inconsistent

between the Court’s holding in Antelope and our holding here

that the first prong of the Bruce test does not require that the

quantum of blood be derived from a member of a federally

recognized tribe. We do not concede that a requirement of

Indian blood standing alone is necessarily a racial rather than

a political classification. See, e.g., 25 U.S.C. § 479 (defining

the term “Indian” in the Indian Reorganization Act to include

“all persons of Indian descent who are members of any

recognized Indian tribe now under Federal jurisdiction, and

all persons who are descendants of such members who were,

on June 1, 1934, residing within the present boundaries of any

Indian reservation,” and “further includ[ing] all other

persons of one-half or more Indian blood”) (emphasis

added)); id. § 1679(a)(2) (defining “eligible” “Indians” to

include members of non-federally recognized tribes so long

as the person can demonstrate descent from an Indian resident

in California as of 1852); id. § 500n (defining “natives of

Alaska” as “native Indians, Eskimos, and Aleuts of whole or

part blood inhabiting Alaska at the time of the Treaty of

Cession of Alaska to the United States and their descendants

of whole or part blood”); 25 C.F.R. § 83.7(e) (to be eligible

for federal acknowledgment, a tribe must demonstrate, among

other things, that its membership “consists of individuals who

descend from a historical Indian tribe”). But even if it were,

the second prong of the Bruce test, as understood in Maggi

and as we understand it now, is enough to ensure that Indian

status is not a racial classification, for the second prong

UNITED STATES V. ZEPEDA 17

requires, as a condition for the exercise of federal jurisdiction,

that the defendant be a member of or be affiliated with a

federally recognized tribe. See Bruce, 394 F.3d at 1224

(noting that the second prong requires a “non-racial link” to

a tribe); LaPier, 986 F.2d at 305.

In Antelope, the Indian defendants had been convicted of

first-degree felony murder under the IMCA. 430 U.S. at

642–43. If they had been tried under Idaho law, the

prosecution would have had to prove additional elements of

premeditation and deliberation, because Idaho law lacked an

applicable felony-murder provision. Id. at 643–44. The

Ninth Circuit held that the disadvantage imposed on

defendants under the IMCA violated equal protection because

“the sole basis for the disparate treatment of appellants and

non-Indians is that of race.” United States v. Antelope,

523 F.2d 400, 403 (9th Cir. 1975) (emphasis in original). The

Supreme Court reversed. It held that the IMCA was “not

based upon impermissible [racial] classifications.” Antelope,

430 U.S. at 646. “Federal regulation of Indian tribes,” the

Court wrote, “is governance of once-sovereign political

communities; it is not to be viewed as legislation of a ‘racial

group consisting of Indians.’” Id. (quoting Morton v.

Mancari, 417 U.S. 535, 553 n.24 (1974) (some internal

quotation marks omitted)).

Neither the Ninth Circuit nor the Supreme Court in

Antelope defined “Indian” under the IMCA. However, we

know from the Court’s analysis that the definition required at

least an affiliation with a federally recognized tribe. Id. at

646 (“[R]espondents were not subjected to federal criminal

jurisdiction because they are of the Indian race but because

they are enrolled members of the Coeur d’Alene Tribe.”).

Neither the Ninth Circuit nor the Court specified whether the

UNITED 18 STATES V. ZEPEDA

definition required, in addition, a quantum of Indian blood.

We may infer, however, that such an additional requirement

would not have made any difference to the Court’s analysis,

for the Court premised its analysis on Mancari, in which the

definition of Indian specifically included a requirement of a

quantum of Indian blood.

In Mancari, decided just three years before Antelope, non-

Indian employees of the Bureau of Indian Affairs (“BIA”)

challenged the employment preference given to Indians under

the so-called Indian Preference Statutes. 417 U.S. at 537.

The term “Indian” is defined variously in federal and state

statutes. Many federal definitions include a requirement of

some “quantum” of Indian blood. See Paul Spruhan, A Legal

History of Blood Quantum in Federal Indian Law to 1935,

51 S.D. L. Rev. 1 (2006); Margo S. Brownell, Note, Who Is

an Indian? Searching for an Answer to the Question at the

Core of Federal Indian Law, 34 U. Mich. J.L. Reform 275

(2000–2001). The definition of “Indian,” for purposes of the

Indian employment preference at issue in Mancari, specified

that “an individual must be one-fourth or more degree Indian

blood and be a member of a Federally-recognized tribe.”

417 U.S. at 553 n.24. The Court upheld the Indian

employment preference, with “Indian” so defined, writing:

Literally every piece of legislation dealing

with Indian tribes and reservations, and

certainly all legislation dealing with the BIA,

single out for special treatment a constituency

of tribal Indians living on or near reservations.

If these laws, derived from historical

relationships and explicitly designed to help

only Indians, were deemed invidious racial

discrimination, an entire Title of the United

UNITED STATES V. ZEPEDA 19

States Code (25 U.S.C.) would be effectively

erased and the solemn commitment of the

Government toward the Indians would be

jeopardized.

Id. at 552; see Antelope, 430 U.S. at 645 (quoting most of this

passage); see also Sarah Krakoff, Inextricably Political:

Race, Membership, and Tribal Sovereignty, 87 Wash. L. Rev.

1041 (2012); Spruhan, supra.

It might be objected that the rationale of Mancari does not

apply to the IMCA, given that Mancari deals with

disproportionate benefits provided to Indians while the

IMCA, at least in some of its applications, deals with

disproportionate burdens imposed on Indians. But the Court

in Antelope specifically responded to this objection. It wrote:

Both Mancari and Fisher [v. District

Court, 424 U.S. 382 (1976),] involved

preferences or disabilities directly promoting

Indian interests in self-government, whereas

in the present case we are dealing, not with

matters of tribal self-regulation, but with

federal regulation of criminal conduct within

Indian country implicating Indian interests.

But the principles reaffirmed in Mancari and

Fisher point more broadly to the conclusion

that federal regulation of Indian affairs is not

based upon impermissible classifications.

Rather, such regulation is rooted in the unique

status of Indians as “a separate people” with

their own political institutions.

430 U.S. at 646.

UNITED 20 STATES V. ZEPEDA

The gloss added by Maggi to the first prong of Bruce

would impose an unnecessary and burdensome requirement.

Under Maggi, the government would have to prove that an

ancestor of the defendant—not merely the defendant himself

or herself—was a member of a federally recognized tribe.

Such proof is unnecessary, given that the political status

necessary to insulate a prosecution under the IMCA from an

equal protection challenge is established, under any

conception of Indian political status, under the second prong

of Bruce. Further, such proof may be difficult or even

impossible to obtain, even if it is undisputed that the

defendant has Indian blood. In some cases, evidence about

the defendant’s Indian ancestors and their tribal affiliation

may be difficult to find or, if found, ambiguous. In other

cases, the evidence may be easily available and clear, but

show that the Indian ancestors were not members of a

federally recognized tribe.

We therefore overrule Maggi and restore the basic

structure of Bruce, though not its precise articulation, as the

“generally accepted test for Indian status” under the IMCA.

Bruce, 394 F.3d at 1223. In doing so, we recognize that

Maggi was right to restate the second prong of the Bruce test

and to make clear that the defendant must have a current

relationship with a federally recognized tribe. We hold that

proof of Indian status under the IMCA requires only two

things: (1) proof of some quantum of Indian blood, whether

or not that blood derives from a member of a federally

recognized tribe, and (2) proof of membership in, or

affiliation with, a federally recognized tribe.

In a prosecution under the IMCA, the government must

prove that the defendant was an Indian at the time of the

offense with which the defendant is charged. If the relevant

UNITED STATES V. ZEPEDA 21

time for determining Indian status were earlier or later, a

defendant could not “predict with certainty” the consequences

of his crime at the time he commits it. Apprendi v. New

Jersey, 530 U.S. 466, 478 (2000). Moreover, the government

could never be sure that its jurisdiction, although proper at the

time of the crime, would not later vanish because an astute

defendant managed to disassociate himself from his tribe.

This would, for both the defendant and the government,

undermine the “notice function” we expect criminal laws to

serve. United States v. Francisco, 536 F.2d 1293, 1296 (9th

Cir. 1976).

Zepeda and the government agree that the government has

the burden of proving to a jury that the defendant was a

member of, or affiliated with, a federally recognized tribe at

the time of the offense. However, they dispute whether the

judge or the jury should determine whether the tribe in

question is federally recognized. Federal recognition “is a

formal political act confirming the tribe’s existence as a

distinct political society, and institutionalizing the

government-to-government relationship between the tribe and

the federal government.” Felix Cohen, Cohen’s Handbook of

Federal Indian Law § 3.02[3], at 134–35 (Nell Jessup

Newton ed., 2012); see 25 C.F.R. § 83.2. The BIA has the

authority to determine which tribes satisfy the criteria for

federal recognition. Zepeda, 738 F.3d at 211. It maintains

and publishes annually a list of federally recognized tribes.

See, e.g., Indian Entities Recognized and Eligible to Receive

Services from the United States Bureau of Indian Affairs

(“BIA List”), 75 Fed. Reg. 60,810-01 (Oct. 1, 2010). “Absent

evidence of its incompleteness, the BIA list appears to be the

best source to identify federally acknowledged Indian tribes

whose members or affiliates satisfy the threshold criminal

jurisdiction inquiry.” LaPier, 986 F.2d at 305. We

UNITED 22 STATES V. ZEPEDA

previously have treated federal recognition of Indian tribes as

a question of law. In LaPier, we held as a matter of law that

the defendant’s tribe was not federally recognized because it

did not appear on the BIA List. Id. at 306. Similarly, in

United States v. Heath, 509 F.2d 16, 19 (9th Cir. 1974), we

held as a matter of law that the defendant’s tribe was not

federally recognized because the federal government had

terminated the tribe’s recognized status. Consistent with

these cases, we hold that federal recognition of a tribe, a

political decision made solely by the federal government and

expressed in authoritative administrative documents, is a

question of law to be decided by the judge.

In seeking to prove federal recognition of a defendant’s

tribe, the government should present to the judge evidence

that the tribe was recognized at the time of the offense. In

most cases, the judge will be able to determine federal

recognition by consulting the relevant BIA List. If necessary

to decide whether the BIA List omits a federally recognized

tribe or includes an unrecognized tribe, the court may consult

other evidence that is judicially noticeable or otherwise

appropriate for consideration.

On the first Bruce prong, the court should instruct the jury

that it has to find beyond a reasonable doubt that the

defendant has some quantum of Indian blood. On the second

prong, the court should instruct the jury that it has to find

beyond a reasonable doubt that the defendant was a member

of, or affiliated with, a federally recognized tribe at the time

of the offense. We described in our opinion in Bruce the

criteria for such recognition. Bruce, 394 F.3d at 1224; see

also Cruz, 554 F.3d at 846. We restate them here,

emphasizing that each of these criteria requires a link to a

federally recognized tribe. The criteria are, in declining order

UNITED STATES V. ZEPEDA 23

of importance: (1) enrollment in a federally recognized tribe;

(2) government recognition formally and informally through

receipt of assistance available only to individuals who are

members, or are eligible to become members, of federally

recognized tribes; (3) enjoyment of the benefits of affiliation

with a federally recognized tribe; (4) social recognition as

someone affiliated with a federally recognized tribe through

residence on a reservation and participation in the social life

of a federally recognized tribe. If the court has found that the

tribe of which the government claims the defendant is a

member, or with which the defendant is affiliated, is federally

recognized, it should inform the jury that the tribe is federally

recognized as a matter of law.

Here, the trial court erred by instructing the jury to find

whether Zepeda was an Indian without telling it how to make

that finding. Zepeda did not object to the instruction, so we

review for plain error. United States v. Williams, 990 F.2d

507, 511 (9th Cir. 1993). “Plain error is ‘(1) error, (2) that is

plain, and (3) that affects substantial rights.’” United States

v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en banc)

(quoting United States v. Cotton, 535 U.S. 625, 631 (2002)).

The erroneous jury instruction did not affect Zepeda’s

substantial rights because, as we discuss below, there was

clear and undisputed evidence that Zepeda both had Indian

blood and was an enrolled member of a federally recognized

tribe. See United States v. Teague, 722 F.3d 1187, 1192 (9th

Cir. 2013) (noting that “failure to instruct on a necessary

offense element” does not affect substantial rights where

“there is [no] reasonable probability the jury’s verdict would

have been different had the jury been properly instructed”

(internal quotation marks omitted)).

UNITED 24 STATES V. ZEPEDA

2. Sufficiency of the Evidence Against Zepeda

Zepeda argues the government failed to present sufficient

evidence at trial to prove that he was an Indian. If Zepeda is

right, we must reverse eight of his nine convictions. The

government charged Zepeda with assault with a dangerous

weapon and assault resulting in serious bodily harm under the

IMCA. See 18 U.S.C. § 1153 (covering “felony assault[s]

under section 113”); 18 U.S.C. §§ 113(3), (6). Conspiracy

and use of a firearm during a crime of violence are “federal

law[s] of general, non-territorial applicability,” which do not

require the government to satisfy the IMCA’s elements.

United States v. Errol D., Jr., 292 F.3d 1159, 1165 (9th Cir.

2002) (quoting United States v. Young, 936 F.2d 1050, 1055

(9th Cir. 1991)). However, to prove that Zepeda used a

firearm during a crime of violence, the government first had

to prove that Zepeda committed the predicate assaults, United

States v. Streit, 962 F.2d 894, 899 (9th Cir. 1992), which

were charged under the IMCA. Therefore, conspiracy was

the only count for which the government did not have to

prove Zepeda’s Indian status.

The first prong of the Bruce test requires only that the

defendant have “some” quantum of Indian blood. Therefore,

“evidence of a parent, grandparent, or great-grandparent who

is clearly identified as an Indian is generally sufficient to

satisfy this prong.” Bruce, 394 F.3d at 1223. The Enrollment

Certificate stated that Zepeda had one-half Indian blood, with

blood from the Pima and Tohono O’Odham tribes. Matthew,

Zepeda’s brother, testified that their father was an Indian.

This evidence was undisputed and clearly satisfied the first

Bruce prong. See id. at 1223–24. As we held above, it is

irrelevant whether the tribes from which Zepeda’s bloodline

derives are federally recognized.

UNITED STATES V. ZEPEDA 25

Zepeda’s Enrollment Certificate established that he was

an enrolled member of the Gila River Indian Community.

The Gila River Indian Community was, as a matter of law, a

federally recognized tribe at the time of the charged offenses.

See BIA List, 74 Fed. Reg. 40,218-02, 40,220 (Aug. 11,

2009); BIA List, 73 Fed. Reg. 18,553-01, 18,554 (Apr. 4,

2008). Zepeda stipulated to the admission of the Enrollment

Certificate and did not challenge its attestation that he was a

member of the Gila River Indian Community.

We therefore hold that the Enrollment Certificate and

Matthew’s testimony were sufficient to establish that Zepeda

was an Indian at the time of the charged offenses.

B. Zepeda’s Sentence

Zepeda argues that his sentence—a prison term of ninety

years and three months—was unreasonable because the

district court improperly treated the Sentencing Guidelines as

mandatory. Zepeda’s sentence is indeed long, but his

argument is based on a misunderstanding of the law

governing his sentence.

Under 18 U.S.C. § 924(c), the district court was required

to impose consecutive mandatory minimum sentences on

Zepeda’s convictions for use of a firearm during a crime of

violence. Each of Zepeda’s convictions under § 924(c) was

tied to a different predicate offense: one count of assault

resulting in serious bodily injury against Peters and three

counts of assault with a dangerous weapon against Peters,

Aviles, and C. The jury found that Zepeda discharged his

firearm in committing each offense. Therefore, Zepeda’s first

conviction under § 924(c) carried a statutory mandatory

minimum sentence of ten years, 18 U.S.C. § 924(c)(1)(A)(iii),

UNITED 26 STATES V. ZEPEDA

and the other three convictions each carried statutory

mandatory minimum sentences of twenty-five years, id.

§ 924(c)(1)(C)(i); see United States v. Beltran-Moreno,

556 F.3d 913, 915 (9th Cir. 2009). Each mandatory

minimum sentence had to be imposed consecutively.

18 U.S.C. § 924(c)(1)(D)(ii); Beltran-Moreno, 556 F.3d at

915. Therefore, Zepeda’s sentence is the only sentence the

district court could impose. See United States v. Harris, 154

F.3d 1082, 1085 (9th Cir. 1998). Its length was determined

not by the judge but, in effect, by the United States

Attorney’s charging decision. Zepeda’s other arguments

challenging his sentence were not properly raised before this

court. See Sandgathe v. Maass, 314 F.3d 371, 380 & n.8 (9th

Cir. 2002); 9th Cir. R. 28-1(b).

Conclusion

We overrule Maggi and hold that the government’s

evidence was sufficient under the Bruce test, as

recharacterized in this opinion, to prove that Zepeda was an

Indian at the time of his crimes. We reject Zepeda’s other

arguments and affirm his convictions and sentence in full.

AFFIRMED.

UNITED STATES V. ZEPEDA 27

KOZINSKI, Circuit Judge, with whom Circuit Judge IKUTA

joins, concurring in the judgment:

The majority’s holding 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. Damien Zepeda will go to

prison for over 90 years because he has “Indian blood,” while

an identically situated tribe member with different racial

characteristics would have had his indictment dismissed. It’s

the most basic tenet of equal protection law that a statute

which treats two identically situated individuals differently

based solely on an unadorned racial characteristic must be

subject to strict scrutiny. The racial test articulated in United

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

unwarranted and impermissible “Indian exception” to that

bedrock principle.

United States v. Maggi at least tethered Bruce’s racial

component to a political relationship. 598 F.3d 1073,

1080–81 (9th Cir. 2010). By overruling Maggi, the majority

leaves the IMCA—and a host of other federal statutes

governing tribes—shorn of even a colorable non-racial

underpinning. I would instead affirm Zepeda’s conviction

either by applying the IMCA to all members of federally

recognized tribes irrespective of their race, or by holding,

consistent with Maggi, that the jury had sufficient evidence

to infer Zepeda’s ancestry was from a federally recognized

tribe. I concur in the judgment only.

1. The majority holds “that proof of Indian status . . .

requires only two things: (1) proof of some quantum of Indian

blood, whether or not that blood derives from a member of a

federally recognized tribe, and (2) proof of membership in, or

UNITED 28 STATES V. ZEPEDA

affiliation with, a federally recognized tribe.” Maj. Op. at 20.

The first prong of that test is an overt racial classification.

The majority is unconcerned by this because, in its view,

“[t]he second prong of the Bruce test . . . is enough to ensure

that Indian status is not a racial classification, for the second

prong requires, as a condition for the exercise of federal

jurisdiction, that the defendant be a member of or be affiliated

with a federally recognized tribe.” Maj. Op. at 16–17.

But the presence of a separate and independent “nonracial

prong” cannot save a test that otherwise turns on race.

Bruce’s political affiliation prong may provide a non-racial

basis for limiting the IMCA only to tribe members. But not

all tribe members are subject to the IMCA. Separating those

who are from those who are not is the function of Bruce’s

first requirement, and that requirement turns entirely on race.

That ineluctably treats identically situated individuals within

a tribe differently from one another solely based on their

immutable racial characteristics.

To claim that the Bruce test is “not a racial classification”

because there’s a non-racial “condition for the exercise of

federal jurisdiction” conflates Congress’s Article I power to

enact a law with the affirmative restrictions imposed by the

Fifth Amendment. The fact that the “defendant [is] a member

of or [] affiliated with a federally recognized tribe” explains

why Congress is able to criminalize a tribe member’s

conduct, even absent a nexus to interstate activity. But the

fact that Congress is permitted to create laws regulating tribe

members doesn’t mean that Congress can administer those

laws in a discriminatory fashion. That would be like saying

a federal law extending criminal penalties only to those with

“African blood” isn’t a racial classification because it can

only be applied to people who engage in interstate commerce.

UNITED STATES V. ZEPEDA 29

“[A]ny person, of whatever race, has the right to demand

that any governmental actor subject to the Constitution justify

any racial classification subjecting that person to unequal

treatment under the strictest judicial scrutiny.” Adarand

Constructors, Inc. v. Pena, 515 U.S. 200, 224 (1995).

Indians are no exception. The Supreme Court has stressed

time and again that federal regulation of Indian tribes does

not equate to federal regulation of the Indian race. Federal

laws governing tribes do “not derive from [] race . . . but

rather from [a tribe’s] quasi-sovereign status . . . under federal

law.” Fisher v. District Court, 424 U.S. 382, 390 (1976) (per

curiam). “[R]egulation is rooted in the unique status of

Indians as [a nation] with their own political institutions . . .

[and] is not to be viewed as legislation of a ‘racial group

consisting of Indians.’” United States v. Antelope, 430 U.S.

641, 646 (1977) (quoting Morton v. Mancari, 417 U.S. 535,

553 n.24 (1974)). In fact, the Supreme Court has specifically

stated that defendants are “not subjected to federal criminal

jurisdiction [under the IMCA] because they are of the Indian

race but because they are enrolled members of [a federally

recognized] tribe.” Id. Taken together, Antelope and

Mancari stand for the proposition that Congress can enact

laws that treat members of federally recognized tribes

differently from non-members so long as that disparate

treatment occurs along political rather than racial lines. That

holding cannot be reconciled with the holding here, which

leaves Congress free to enact any law that racially

discriminates between individuals within a tribe.

2. The panel in Bruce believed itself bound to apply a

racial test because of the Supreme Court’s decision in United

States v. Rogers, 45 U.S. (4 How.) 567 (1846). Rogers is a

nearly 170-year-old case, authored by Chief Justice Taney, in

which the Court held that an adopted, non-racially Indian

UNITED 30 STATES V. ZEPEDA

tribe member wasn’t subject to an exemption from federal

criminal jurisdiction for crimes committed by an “Indian”

against another “Indian.” Id. at 572–73. In defining “Indian”

for purposes of the statute, the Court noted that the law “does

not speak of members of a tribe, but of the race

generally,—of the family of Indians,” id. at 573, and justified

the federal government’s exercise of power over “this

unfortunate race” in part based on the need “to enlighten their

minds and increase their comforts, and to save them if

possible from the consequences of their own vices,” id. at

572.

Reliance on pre-civil war precedent laden with dubious

racial undertones seems an odd course for our circuit law to

have followed, especially in light of the Supreme Court’s

much more recent holdings in Mancari and Antelope. And,

even if intervening developments in equal protection law

hadn’t rendered Rogers obsolete, it’s clearly distinguishable.

Rogers stands for the limited proposition that “a white man

who at mature age is adopted in an Indian tribe does not

thereby become an Indian,” 45 U.S. (4 How.) at 572, when

the adoption occurs for the purpose of evading prosecution.

A case that does no more than prohibit a tribe from making

membership exceptions designed to circumvent criminal

punishment is a weak reed upon which to rest the federal

government’s unfettered ability to racially discriminate

between tribe members.

The majority’s strongest support for Bruce’s racial test

appears to be an inference from the fact that the racial

preference upheld in Mancari had a blood quantum

requirement similar to the one at issue here. But that portion

of the provision in Mancari wasn’t challenged by plaintiffs,

nor was there any assertion that the hiring preference in that

UNITED STATES V. ZEPEDA 31

case discriminated among tribe members. Rather, the

grievance in Mancari was that non-tribe members were

discriminated against by the preferential hiring of tribe

members. The constitutionality of that distinction was upheld

because the preference was given to “tribal entities,” not to a

“racial group.” I find it remarkable that the majority is able

to read a case that upholds tribal preferences only so long as

they are non-racial as a broad endorsement of the

government’s power to racially distinguish between those

within a tribe.

3. Overruling Maggi takes our circuit law in the wrong

direction. Maggi at least tied the racial component in Bruce

to a political relationship. Because Congress’s plenary power

over Indian tribes is rooted in treaties and other political

accommodations between sovereign entities, the validity of

federal regulation must turn, not on a tribe’s existence in

some anthropological sense, but on its political relationship

with the United States. A genuine political relationship

between sovereigns requires reciprocal recognition. Thus, as

we correctly noted in LaPier v. McCormick, a political

relationship between a tribe and the federal government exists

only when “the United States recognizes [the] tribe.”

986 F.2d 303, 305 (9th Cir. 1993). That’s why the Court in

Mancari specifically noted Congress has the power “to

legislate on behalf of federally recognized Indian tribes,”

417 U.S. at 551 (emphasis added), not merely “tribes.”

Maggi ensured that we tied Bruce’s racial component to

this political relationship. Regulation was rooted in a racial

connection to an established political entity, rather than in an

unadorned racial characteristic. Maggi was less than perfect,

of course. At bottom, a racial distinction still controlled the

application of federal law. But at least the racial lineage in

UNITED 32 STATES V. ZEPEDA

question bore some relation to the purported source of federal

power. An unrecognized tribe is not a quasi-sovereign

political entity for the purposes of federal law, and has no

political relationship whatsoever with the United States. To

allow a federal statute to turn solely on a racial connection to

an unrecognized tribe has no basis in the justification for

disparate treatment articulated in Mancari and Antelope.

* * *

By extending Bruce and overruling Maggi, 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. It may be that Congress will never use

that power to work racial injustice, but the Constitution’s

commands are inexorable precisely because we aren’t

prescient enough to predict all the ways in which the

government can abuse the power we give to it. Whatever

complexities may be inherent in the federal regulation of

Indian tribes, the equal protection clause permits no

exceptions. Racial classifications must survive the strictest

scrutiny. Those that cannot have no place in our law.

UNITED STATES V. ZEPEDA 33

IKUTA, Circuit Judge, with whom KOZINSKI, Circuit

Judge, joins, concurring in the judgment:

The majority today holds that we must continue to define

an Indian by the “degree of Indian blood” as required by

United States v. Bruce, 394 F.3d 1215, 1223 (9th Cir. 2005).

Maj. Op. at 13–14. This is a troubling conclusion, and an

unnecessary one. The Bruce blood quantum requirement

serves no purpose, because the second prong of the Bruce test

adequately defines an Indian based on his “tribal or

government recognition as an Indian.” Bruce, 394 F.3d at

1223 (internal quotation mark omitted). In holding that a

person is not an Indian unless a federal court has determined

that the person has an acceptable Indian “blood quantum,” we

disrespect the tribe’s sovereignty by refusing to defer to the

tribe’s own determination of its membership rolls. It’s as if

we declined to deem a person to be a citizen of France unless

that person can prove up a certain quantum of “French

blood,” and we declared that adoptees whose biological

parents are Italian cannot qualify.

Because there is no need to use the blood quantum test in

this context, we should avoid perpetuating the sorry history

of this method of establishing a race-based distinction. Early

in our history, state courts used blood quantum tests to

determine who was a slave and who was free. See Gentry v.

McMinnis, 33 Ky. (3 Dana) 382, 385 (1835) (explaining that

“[a]ll persons of blood not less than one-fourth African, are

(in Virginia and Kentucky) prima facie deemed slaves; and,

e converso, whites and those less than one-fourth African,

are, prima facie, free”). Even after slavery was abolished,

states used blood quantum tests to define “persons of color”

and to ensure segregation of “persons of color” from white

persons. See, e.g., 1 Pope’s Digest of Stats. of Ark. § 1200

UNITED 34 STATES V. ZEPEDA

(1937) (defining persons who “belong to the African race,”

for the purposes of railroad segregation, as “[p]ersons in

whom there is a visible and distinct admixture of African

blood”); Ga. Code Ann. § 79-103 (1933) (defining “persons

of color” as persons who have “any ascertainable trace” of

colored blood); Va. Code Ann. § 67 (Michie 1924) (defining

a “colored person” as a person “having one-sixteenth or more

of negro blood” and “an Indian” as a non-colored person with

one-fourth Indian blood). And the same blood quantum tests

determined who could vote. See People v. Dean, 14 Mich.

406, 413–15, 425 (1866) (construing state law giving only

“white male citizens” the right to vote as excluding persons

of African descent unless they had less than one-fourth

African blood).

Similarly, states relied on blood quantum tests to prevent

white people from marrying persons of color. See Loving v.

Virginia, 388 U.S. 1, 6 (1967). Loving finally invalidated

Virginia’s miscegenation laws, which prohibited

intermarriage between white persons and nonwhites, and

explained that the term “white person” applied “only to such

person as has no trace whatever of any blood other than

Caucasian; but persons who have one-sixteenth or less of the

blood of the American Indian and have no other

non-Caucasic blood shall be deemed to be white persons.”

Id. at 5 n.4, 12 (quoting Va. Code Ann. § 20–54 (1960)).

Our nation also used blood quantum tests to discriminate

against nonwhites who wanted to become citizens. Congress

decreed that only a “free white person[]” could be granted the

“privilege of naturalization,” and courts generally construed

this requirement to mean that “men are not white if the strain

of colored blood in them is a half or a quarter, or, not

improbably, even less, the governing test always being that of

UNITED STATES V. ZEPEDA 35

common understanding.” Morrison v. California, 291 U.S.

82, 85–86 (1934) (internal citation and quotation marks

omitted); see also 8 U.S.C. § 703 (1940) (extending the right

to be a naturalized citizen only to persons with an approved

admixture of blood of specified classes). In ten states, only

persons who met the blood quantum requirement for

naturalization could own land. See Dudley O. McGovney,

The Anti-Japanese Land Laws of California and Ten Other

States, 35 Calif. L. Rev. 7, 7–9 (1947). And during World

War II, the government took into account the quantum of a

citizen’s Japanese blood in determining who would be held

in internment camps. See J.L. DeWitt, Final Report:

Japanese Evacuation from the West Coast, 1942, at 145

(1943) (noting that “[m]ixed-blood (one-half Japanese or

less) individuals,” among others, were eligible for exemption

from evacuation).

The Supreme Court recently reaffirmed opposition to

“[a]ncestral tracing of this sort” in laws that serve to enable

race-based distinctions. Rice v. Cayetano, 528 U.S. 495, 510,

517, 524 (2000) (holding unconstitutional a Hawaiian

constitutional provision that limited voting, by statute, to

“any descendant of not less than one-half part of the races

inhabiting the Hawaiian Islands previous to 1778”). Because

we have no need to use this metric, and because I doubt it

would survive strict scrutiny, I join Judge Kozinski’s

concurrence in full and concur in the judgment only. It is

regrettable that we did not take the opportunity as an en banc

panel to remove Bruce’s first prong from our jurisprudence.

We overrule Maggi and hold that the government’s

evidence was sufficient under the Bruce test, as

recharacterized in this opinion, to prove that Zepeda was an

Indian at the time of his crimes. We reject Zepeda’s other

arguments and affirm his convictions and sentence in full.



AFFIRMED.