598 F.3d 1073 (9th Cir. 2010), 08-30223, United States v. Maggi

Docket Nº:08-30223, 09-30052.
Citation:598 F.3d 1073
Opinion Judge:McKEOWN, Circuit Judge:
Party Name: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., Defendant-Appellant.
Attorney: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)...
Judge Panel:Before: HAWKINS, M. MARGARET McKEOWN and JAY S. BYBEE, Circuit Judges.
Case Date:March 16, 2010
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1073

598 F.3d 1073 (9th Cir. 2010)

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., Defendant-Appellant.

Nos. 08-30223, 09-30052.

United States Court of Appeals, Ninth Circuit.

March 16, 2010

Argued and Submitted Sept. 1, 2009.

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[Copyrighted Material Omitted]

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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-00068-SEH.

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 not

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decide 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 college

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grants. 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)(1)(A)(iii), discharging a firearm during a crime of violence, as alleged in Count I; and (IV) under 18 U.S.C. § 924(c)(1)(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...

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