U.S. v. Lomayaoma

Decision Date17 May 1996
Docket NumberNos. 95-10516,CR-90-00313-EHC,s. 95-10516
Citation86 F.3d 142,1996 WL 279991
Parties96 Cal. Daily Op. Serv. 3783, 96 Daily Journal D.A.R. 6148 UNITED STATES of America, Plaintiff-Appellee, v. Wilmer LOMAYAOMA, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Charles F. Hyder, Assistant United States Attorney, Phoenix, Arizona, for plaintiff-appellee.

Jon M. Sands, Assistant Federal Public Defender, Phoenix, Arizona, for defendant-appellant.

Appeal from the United States District Court for the District of Arizona, Earl H. Carroll, District Judge, Presiding.

Before PREGERSON and TROTT, Circuit Judges, and EZRA, District Judge. **

PREGERSON, Circuit Judge:

Wilmer Lomayaoma was convicted of criminal sexual contact under the Indian Major Crimes Act, 18 U.S.C. § 1153, and 18 U.S.C. § 2244(a)(1). While on supervised release, Lomayaoma was implicated in a child molestation incident. The district court held a hearing and then decided to revoke Lomayaoma's supervised release. We determine that the district court had jurisdiction under the Indian Major Crimes Act, 18 U.S.C. § 1153. 1 We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

In September 1990, Lomayaoma was indicted in the United States District Court for the District of Arizona for violations of 18 U.S.C. §§ 1153 & 2244(a)(1). The indictment charged Lomayaoma with one count of abusive sexual contact with a minor female child under the age of twelve. The indictment alleged that this criminal sexual contact took place on the Hopi Indian Reservation. Lomayaoma pled guilty to the indictment in November 1990.

In February 1991, the district court sentenced Lomayaoma to a fine, twenty-one months of imprisonment, and thirty-six months of supervised release. The court conditioned the supervised release on Lomayaoma's remaining "law abiding." The issues on appeal relate to Lomayaoma's conduct during his supervised release.

In July 1995, Lomayaoma's probation officer, James Barquin, petitioned the court for revocation of Lomayaoma's supervised release. The petition alleged that Lomayaoma had committed two counts of child molestation on August 2, 1994, in violation of the condition of his supervised release. Lomayaoma opposed the petition.

On October 13, 1995, the district court conducted an evidentiary hearing. The court heard the testimony of the alleged victims, Mary and Jane Doe, 2 as well as testimony from Angelina Talyumptewa, a Counselor for the Hopi Children's Court. The testimony established that on the morning of August 2, 1994, Lomayaoma, without permission, entered the victims' home, which is located in Polacca, Arizona on the Hopi Indian Reservation. Mary and Jane were the only persons at the home on the morning of August 2, 1995. Mary was fourteen years old and Jane was twelve at the time of the incident.

The events as alleged by the two girls are as follows. Lomayaoma entered Jane's bedroom and woke her by touching her on her breast or stomach area. 3 Jane did not yell or scream and the defendant left the room. Lomayaoma then entered Mary's bedroom. He woke her by placing his hand on her vagina. 4 Mary testified that the touching occurred through the blankets and her clothes, but was forceful enough for her to feel its pressure, giving her a "tingly feeling." Mary also testified that Lomayaoma's touching made her feel "dirty" and "awful."

Lomayaoma then fled the house. Shortly thereafter, Jane telephoned her mother, who immediately notified the Hopi Tribal Police. The police went to the victims' home with Talyumptewa, the Hopi Children's Court Counselor, to investigate the incident. Talyumptewa testified that the ordeal had adversely affected the girls, making psychological counseling necessary.

The court found that the testimony of the two sisters was credible and that the nature of the acts would constitute illegal sexual contact under 18 U.S.C. § 2246. 5 The court then concluded that the government had proved that Lomayaoma had failed to remain law abiding.

At a final hearing held on November 6, 1995, Lomayaoma moved to dismiss for want of jurisdiction. The court denied the motion. In an order filed November 7, 1995, the district court sentenced Lomayaoma to ten months imprisonment for violation of the terms of his supervised release. Lomayaoma now appeals.

II

Before we reach the merits, we address Lomayaoma's argument that the Supreme Court's decision in United States v. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), requires us to find that the Indian Major Crimes Act, 18 U.S.C. § 1153, is unconstitutional. In addressing this argument, we look first to Lopez and then to the Court's recent decision in Seminole Tribe of Florida v. Florida, --- U.S. ----, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). We then consider the Indian Major Crimes Act.

A

Lopez addressed a conviction under the Gun-Free School Zones Act, 18 U.S.C. § 22(q)(1)(A) (1988 ed. Supp. V). Lopez, --- U.S. at ----, 115 S.Ct. at 1626. In the Gun-Free School Zones Act, Congress criminalized possession of a firearm within defined school zones. Alfonso Lopez, Jr., a 12th-grade student, was convicted under the Act after he arrived at his high school carrying a handgun and five bullets. Id. In overturning Lopez's conviction, the Fifth Circuit held that the Gun-Free School Zones Act was "invalid as beyond the power of Congress under the Commerce Clause." Id. (quoting 2 F.3d 1342, 1367-68 (5th Cir.1993)).

The Supreme Court affirmed. The Court began its analysis with what it termed "first principles." Lopez, --- U.S. at ----, 115 S.Ct. at 1626. Among these constitutional precepts, the Court explained, is the principle that Congress's power to legislate under the authority of the Interstate Commerce Clause is necessarily limited. Id. at ---- - ----, 115 S.Ct. at 1626-27. Thus, Congress may regulate only those activities that "substantially affect[ ]" interstate commerce. Id. at ----, 115 S.Ct. at 1630. The Court stated, "by its terms the [Gun-Free School Zones] Act has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms." Lopez, at ---- - ----, 115 S.Ct. at 1630-31; see Charles Fried, The Supreme Court, 1994 Term--Foreword: Revolutions?, 109 Harv. L.Rev. 13, 41 (1994). The fact that education is an area "where States historically have been sovereign" increased the Court's concern that Congress was exceeding its Interstate Commerce Clause power by regulating guns in local school zones. Lopez, at ---- - ----, 115 S.Ct. at 1632-33; Fried, 109 Harv. L.Rev. at 41.

In Seminole Tribe, the Supreme Court struck 25 U.S.C. § 2710(d)(7), in which Congress purported to authorize tribes to sue states in federal court to enforce the Indian Gaming Regulatory Act of 1988. The Seminole Tribe used this provision to sue Florida. Florida argued that the suit violated its Eleventh Amendment immunity from suit in federal court. The Supreme Court agreed, holding that Congress could not use the Indian Commerce Clause to abrogate Florida's Eleventh Amendment immunity. Seminole Tribe, --- U.S. at ----, 116 S.Ct. at 1122.

However, the Court then took care to reaffirm the principle that Indian commerce is under the exclusive control of the Federal government. Seminole Tribe, --- U.S. at ----, 116 S.Ct. at 1126. Indeed, the Court recognized that although they are similar, the Indian Commerce Clause confers more extensive power on Congress than does the Interstate Commerce Clause. Id.

Reading Lopez with Seminole Tribe, we do not believe that the Court has called into question Congress's authority under the Indian Commerce Clause to regulate Indian criminal conduct in Indian country.

B

Historically, Congress has held plenary authority to regulate Indian affairs. This power "to deal with the special problems of Indians is drawn both explicitly and implicitly from the Constitution itself. Article I, § 8, cl. 3, provides Congress with the power to 'regulate Commerce ... with the Indian Tribes,' and thus, to this extent, singles Indians out as a proper subject for separate legislation." Morton v. Mancari, 417 U.S. 535, 551-52, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974). See also William C. Canby, Jr., American Indian Law 2, 11-12 (2d ed.1988) (discussing federal power over Indian affairs). We therefore note at the outset that "first principles" in federal Indian law are distinct from those governing the federal regulation of interstate commerce. See Philip Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 Harv. L.Rev. 381, 384 (1993).

In the Indian Major Crimes Act of 1885, Congress chose to "place[ ] under the jurisdiction of the federal courts Indian offenders who commit certain specified major offenses." Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 203, 98 S.Ct. 1011, 1018, 55 L.Ed.2d 209 (1978) (citing Act of Mar. 3, 1885, § 9, 23 Stat. 385, now codified, as amended, 18 U.S.C. § 1153). In 1886, the Supreme Court upheld the Indian Major Crimes Act as within the power of Congress to regulate Indian criminal activity in Indian country. United States v. Kagama, 118 U.S. 375, 384-85, 6 S.Ct. 1109, 1114, 30 L.Ed. 228 (1886). The Court's decision in Kagama was not anomalous. See, e.g., United States v. Antelope, 430 U.S. 641, 648, 97 S.Ct. 1395, 1399, 51 L.Ed.2d 701 (1977), Keeble v. United States, 412 U.S. 205, 209, 93 S.Ct. 1993, 1996, 36 L.Ed.2d 844 (1973); Lone Wolf v. Hitchcock, 187 U.S. 553, 566-67, 23 S.Ct. 216, 221-22, 47 L.Ed. 299 (1903); United States v. Thomas, 151 U.S. 577, 585, 14 S.Ct. 426, 429, 38 L.Ed. 276 (1894). Even in more recent years, the Court has assumed the constitutionality of the Indian Major Crimes Act. See, e.g., Negonsott v. Samuels, 507 U.S. 99, 103, 113 S.Ct. 1119, 1122, 122 L.Ed.2d 457 (1993); Oliphant, 435 U.S. at 203-04 & n. 14, 98 S.Ct. at 1018-19 & n. 14. For example, in Negonsott the...

To continue reading

Request your trial
55 cases
  • Bergemann v. State of R.I.
    • United States
    • U.S. District Court — District of Rhode Island
    • March 5, 1997
    ...this Chapter...." 3. Plaintiffs cite Crow Tribe of Indians v. Racicot, 87 F.3d 1039, n. 1 (9th Cir.1996) and United States v. Lomayaoma, 86 F.3d 142, 145-46 (9th Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 272, 136 L.Ed.2d 196 (1996), in support of their argument. However, as neither c......
  • Brzonkala v. Virginia Polytechnic Institute and State University
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • December 23, 1997
    ...340, 343-45 (9th Cir.1996) (upholding 18 U.S.C. § 922(x)(2), which prohibits juvenile possession of a handgun); United States v. Lomayaoma, 86 F.3d 142, 144-46 (9th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 272, 136 L.Ed.2d 196 (1996) (upholding the Indian Major Crimes Act, 18 U.S.C. § ......
  • U.S. v. Juvenile Male, s. 96-10473
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • June 12, 1997
    ...of a firearm while engaged in drug trafficking), cert. denied, --- U.S. ----, 117 S.Ct. 318, 136 L.Ed.2d 233 (1996); United States v. Lomayaoma, 86 F.3d 142 (9th Cir.) (upholding the Indian Major Crimes Act, 18 U.S.C. § 1153), cert. denied, --- U.S. ----, 117 S.Ct. 272, 136 L.Ed.2d 196 (199......
  • U.S. v. Wall
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • October 22, 1996
    ...Folen, 84 F.3d 1103 (8th Cir.1996) (upholding 18 U.S.C. § 842(i), which prohibits felons from possessing explosives); United States v. Lomayaoma, 86 F.3d 142 (9th Cir.1996) (upholding the Indian Major Crimes Act, 18 U.S.C. § 1153); United States v. Wilson, 73 F.3d 675 (7th Cir.1995) (uphold......
  • Request a trial to view additional results
1 books & journal articles
  • Termination, modification and revocation of probation and supervised release
    • United States
    • James Publishing Practical Law Books Federal Criminal Practice
    • April 30, 2022
    ...the same conduct are dismissed prior to trial; or the person’s criminal conviction is subsequently overturned. United States v. Lomayaoma, 86 F. 3d 142, 146 (9th Cir. 1996) (conviction for criminal offense alleged as ground for violation is not prerequisite for revoking supervised release);......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT