U.S.A v. Maggi, 08-30223

• Decision Date: 16 March 2010
• Docket Number: No. 09-30052.,No. 08-30223,08-30223,09-30052.
• Citation: 598 F.3d 1073
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Shane Medore MAGGI, aka Shane Maggi, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Gordon Ray Mann, Jr., DefendantAppellant.
• Court: U.S. Court of Appeals — Ninth Circuit

598 F.3d 1073

UNITED STATES of America, Plaintiff-Appellee, v. Shane Medore MAGGI, aka Shane Maggi, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Gordon Ray Mann, Jr., DefendantAppellant.

No. 08-30223

No. 09-30052.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 1, 2009.

Filed March 16, 2010.

COPYRIGHT MATERIAL OMITTED

Palmer A. Hoovestal (argued), Hoovestal Law Firm, PLLC, Helena, MT, for defendant-appellant Gordon Mann.

James B. Obie, Obie Law, P.C., Helena MT; Daniel Donovan (argued), Great Falls, MT, for defendant-appellant Shane Maggi.

William W. Mercer, United States Attorney, E. Vincent Carroll (argued), Assistant U.S. Attorney, U.S. Attorney's Office Great Falls, MT, for government-appellees United States of America.

Appeals from the United States District Court for the District of Montana, Sam E Haddon, District Judge, Presiding. D.C. Nos. 4:07-cr-00125-SEH;4:08-CR-00068SEH.

Before: HAWKINS, M. MARGARET McKEOWN and JAY S. BYBEE, Circuit Judges.

McKEOWN, Circuit Judge:

The Major Crimes Act, 18 U.S.C § 1153, provides federal criminal jurisdiction for certain crimes committed by Indians in Indian country. As the Supreme Court explained in United States v. Antelope, "we are dealing [ ] not with matters of tribal self-regulation, but with federal regulation of criminal conduct within Indian country implicating Indian interests." 430 U.S. 641, 646, 97 S.Ct. 1395, 51 L.Ed.2d 701 (1977). Determination of who is an Indian under the statute is not as easy as it might seem. Indeed, the statute contains no definition, leaving to the courts the task of defining "Indian." See Felix Cohen, Handbook of Federal Indian Law § 3.03[4] (LexisNexis 2005) ("Cohen"). We have developed a framework for evaluating Indian status under § 1153: 1) the presence of some Indian blood indicating tribal ancestry; and 2) tribal or government recognition as an Indian. United States v. Bruce, 394 F.3d 1215, 1223 (9th Cir.2005). Both prongs must be satisfied to establish Indian status.

Gordon Mann and Shane Maggi appeal from unrelated convictions on the same basis, namely that they are not "Indians" for purposes of prosecution under the Major Crimes Act. Because there is no evidence that Mann has any blood from a federally recognized Indian tribe, his conviction must be vacated. Maggi's documented blood from a federally recognized tribe is scant—1/64. However, we do notdecide the novel question whether Maggi's Indian blood degree is adequate; rather because Maggi lacks sufficient government or tribal recognition as an Indian, his conviction must also be vacated. In light of this disposition, we need not consider Maggi's additional challenges to the sufficiency of the indictment and the reasonableness of the sentence.

Background

I. Gordon Mann

Gordon Mann was convicted in district court in Montana for one count of aggravated sexual abuse of a minor. Mann confessed to the criminal conduct, which occurred at his house, located within the boundaries of the Blackfeet reservation.

Since 1987, Mann has been an enrolled member of the Little Shell Tribe of the Chippewa Cree. This Indian tribe is not recognized by the federal government, although there is a longstanding petition for recognition pending. The tribe does not receive land, medical care, education, housing, federal grants or other benefits from the federal government that federally recognized tribes typically receive. The Little Shell Tribe is, however, recognized as an Indian tribe by the State of Montana, and has close to 5000 enrolled members who receive some limited benefits, including access to a medical clinic and an economic development program.

Tribal enrollment records often include identification of an individual's percentage of Indian blood, calculated according to ancestral connections to a tribe or tribes. This information is used to establish eligibility for enrollment. Mann's enrollment record notes that his degree of Indian blood is 10/64 Chippewa and 11/64 "other Indian blood."

Mann was charged in October 2008 with two counts of aggravated sexual abuse. Count I was charged under 18 U.S.C. §§ 1153(a), the Major Crimes Act, and 2241(c), sexual offense in a federal enclave. Count II was charged under 18 U.S.C. §§ 1152, the General Crimes Act, and 2241(c). An element of the charge under § 1153(a) was that Mann is an Indian; an element of the charge under § 1152 was that Mann is not an Indian.

At trial, Mann maintained that he is not an Indian for purposes of § 1153(a). At the close of the prosecution's case, Mann moved for a judgment of acquittal on the ground that the government had not established his Indian status. The court denied the motion on the basis that Indian status is a jury determination. Mann renewed the motion following the close of evidence, and it was again denied. Using a bifurcated verdict form, the jury concluded Mann was an Indian, and found him guilty on Count I, under § 1153. The jury did not reach Count II, under § 1152.

II. Shane Maggi

Shane Maggi was convicted in district court in Montana on four counts relating to assault with a dangerous weapon and related firearms charges. Maggi attacked Kelly Hoyt and his wife, Kimberly Hoyt, in their home, which is within the boundaries of the Blackfeet Indian reservation.

Maggi's degree of Indian blood is 1/64 from the Blackfeet tribe and 1/32 from the Cree tribe, although the record does not show whether he is descended from a federally recognized tribe (e.g., Rocky Boy Reservation Chippewa Cree) or a non-recognized tribe (e.g., Little Shell Tribe Chippewa Cree). Maggi is not an enrolled member of any Indian tribe. His mother is an enrolled member of the Blackfeet tribe, which qualifies Maggi as a "descendant member" of the Blackfeet tribe and eligible for certain benefits, such as limited treatment from Indian Health Services (IHS), hunting and fishing rights on the reservation, and access to certain collegegrants. Maggi has received treatment at an IHS hospital facility in Montana. Maggi has also been prosecuted in several unrelated prior actions in the Blackfeet tribal court, which has jurisdiction to prosecute enrolled and descendant members of the Blackfeet tribe. According to testimony by the Hoyts, Maggi held himself out as an Indian and discussed attending powwows and participating in sweats and smudging, which are tribal religious practices.

Maggi was charged with four counts: (I) under 18 U.S.C. §§ 113(a)(3) and 1153, assault with a dangerous weapon of Kelly Hoyt; (II) the same, as to Kimberly Hoyt; (III) under 18 U.S.C. § 924(c)(l)(A)(iii), discharging a firearm during a crime of violence, as alleged in Count I; and (IV) under 18 U.S.C. § 924(c)(l)(A)(ii), brandishing a firearm during a crime of violence, as alleged in Count II.

Maggi entered a plea of not guilty and proceeded to trial. At the close of the prosecution's case, Maggi moved for a judgment of acquittal on the basis that he is not an Indian, as required under § 1153. As in Mann's case, the court denied the motion on the basis that Indian status must be determined by the jury. Maggi did not present a case, and so the record was closed following the decision on the motion to acquit. The jury convicted Maggi on all four counts. On appeal, Maggi does not challenge that he perpetrated the underlying criminal conduct. Maggi instead contends that he is not an Indian for purposes of prosecution under § 1153.

Analysis

I. Indian Status Under § 1153

The Major Crimes Act, 18 U.S.C § 1153, establishes federal criminal jurisdiction over certain serious crimes committed in Indian country by Indian defendants. The General Crimes Act, 18 U.S.C § 1152, provides federal criminal jurisdiction over certain crimes committed in Indi an country when either the defendant or the victim, but not both, are Indian.

Section 1152 is not directly at issue in these appeals, but is referenced because of the interrelationship between the statutes and the fact that the definition of Indian status is relevant to both provisions. The Bruce case provides a thoughtful discussion of federal jurisdiction in Indian country, with a focus on Indian status under these two statutes. 394 F.3d at 1218-22.

Section 1153(a) reads:

Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnaping, maiming, a felony under chapter 109A, incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury (as defined in section 1365 of this title), 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.

Under § 1153(a), the defendant's status as an Indian is an element of the offense that must be alleged in the indictment and proved beyond a reasonable doubt. United States v. Cruz, 554 F.3d 840, 845 (9th Cir.2009) (quoting Bruce, 394 F.3d at 1229).

Because there is no statutory definition of who is an Indian, courts have stepped in to spell out the meaning of "Indian" for purposes of criminal jurisdiction. Reaching back to the mid-nineteenth century, in United States v. Rogers, the Supreme Court announced that to be considered an Indian for purposes of criminal jurisdic-tion, an individual must have an ancestral connection to an Indian tribe in addition to a current social affiliation with the tribe. 45 U.S. (4 How.) 567, 573, 11 L.Ed. 1105 (1846). Based on Rogers, the two-part test developed and took root. See COHEN supra, § 3.03[4] ("The common test that has evolved after United States v. Rogers, for use with both of the federal Indian country criminal statutes, considers Indian...