United States v. 2010-05-07 | 08-16786 | LESLIE EAGLE V. YERINGTON PAIUTE TRIBE | precedential |…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 LESLIE DAWN EAGLE, No. 08-16786
Petitioner-Appellant, D.C. No.
v. 3:06-cv-00563-  LRH-RAMYERINGTON PAIUTE TRIBE,
Respondent-Appellee. OPINION

Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted
February 9, 2010—San Francisco, California
Filed May 7, 2010
Before: Alex Kozinski, Chief Judge, David R. Thompson
and M. Margaret McKeown, Circuit Judges.
Opinion by Judge Thompson
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COUNSEL
Michael K. Powell, Reno, Nevada, for the petition-
er/appellant.
Mitchell C. Wright, Reno, Nevada, for the respon-
dent/appellee.
OPINION
THOMPSON, Senior Circuit Judge:
Leslie Dawn Eagle challenges her conviction of criminal
child abuse in the tribal court for the Yerington Paiute Tribe.
Dawn Eagle contends she was denied due process because the
Tribe failed to allege and prove beyond a reasonable doubt
that she was an “Indian,” which, according to Dawn Eagle, is
a necessary element of her crime of conviction. The district
court concluded that Indian status, although a requirement for
tribal jurisdiction, was not an element of the crime and denied
Dawn Eagle’s habeas corpus petition. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
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I
Background
In August 2004, the Tribe filed a criminal complaint charg-
ing Dawn Eagle with child abuse under section 5-50-020 of
the Tribe’s Law and Order Code (the “Code”). In January
2005, the Tribe filed a second complaint against Dawn Eagle,
which added several criminal counts and attached a probable
cause statement alleging that Dawn Eagle was an Indian. For
procedural reasons, the Tribe prosecuted Dawn Eagle under
the original complaint only.
Section 5-50-020 defines child abuse as the “non-accidental
physical or mental injury to a person under eighteen” in the
defendant’s care. The defendant’s status as an Indian is not an
element of this offense.
The Code recognizes that the tribal court only has criminal
jurisdiction over Indians. Section 1-20-030 provides that the
“Tribal Court shall have criminal jurisdiction over all offenses
enumerated in this Law and Order Code . . . when committed
within the jurisdiction of the court by any Indian . . . .” Sec-
tion 1-21-030 of the Code specifies that the “burden of raising
the issue of non-jurisdiction (status as a Non-Indian) shall be
upon the person claiming the exemption from jurisdiction but
the burden of proof of jurisdiction (status as an Indian)
remains with the prosecution.”
Dawn Eagle never raised the issue of her Indian status or
the tribal court’s jurisdiction before trial or at any point prior
to the close of evidence. Instead, Dawn Eagle stated for the
first time during closing argument that she should be found
not guilty because the prosecution failed to prove that she was
an Indian. The tribal court convicted Dawn Eagle without
expressly concluding that she was an Indian.
Dawn Eagle appealed to the Inter-Tribal Court of Appeals,
which affirmed. That court concluded that Dawn Eagle failed
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to timely and adequately challenge the Tribe’s jurisdiction,
and that there was sufficient evidence at trial establishing that
Dawn Eagle was in fact an Indian.
Dawn Eagle filed a petition for a writ of habeas corpus with
the district court pursuant to 25 U.S.C. § 1303. The district
court denied the petition, concluding that Indian status was
not a necessary element of the crime of which Dawn Eagle
had been convicted. The district court concluded that the
Tribe did not have to prove beyond a reasonable doubt that
Dawn Eagle was an Indian when she raised the issue for the
first time in her closing argument. This appeal followed.
II
Tribal Jurisdiction
[1] In 1990, Congress amended the Indian Civil Rights Act
of 1968 (“ICRA”), 25 U.S.C. §§ 1301-1303, in response to
the Supreme Court’s decision in Duro v. Reina, 495 U.S. 676
(1990), which held that tribes lack inherent authority to prose-
cute nonmember Indians. Pub. L. 101-511, Title VIII,
§ 8077(b)-(c), 104 Stat. 1856, 1892-93 (1990). Congress
amended the definition of the tribes’ “power of self-
government” to “recognize[ ] and affirm[ ]” the “inherent
power of Indian tribes . . . to exercise criminal jurisdiction
over all Indians.” 25 U.S.C. § 1301(2). Coined the “Duro-
fix,” the 1990 Amendments restored the tribes’ inherent
power to prosecute nonmember Indians for misdemeanors.
United States v. Lara, 541 U.S. 193, 199 (2004); id. at 215-16
(Thomas, J., concurring).
[2] The 1990 Amendments defined “Indian” as “any per-
son who would be subject to the jurisdiction of the United
States as an Indian under section 1153, Title 18, if that person
were to commit an offense listed in that section in Indian
country to which that section applies.” 25 U.S.C. § 1301(4).
Section 1153 gives the federal courts exclusive jurisdiction
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over “[a]ny Indian” who commits certain crimes within Indian
country. See Oliphant v. Suquamish Indian Tribe, 435 U.S.
191, 203 (1978). It does not define “Indian,” but the Supreme
Court has concluded that for the purpose of federal jurisdic-
tion, “Indian” does not include “many individuals who are
racially to be classified as ‘Indians.’ ” United States v. Ante-
lope, 430 U.S. 641, 646 n.7 (1977) (quoting Morton v. Man-
cari, 417 U.S. 535, 553 n.24 (1974)) (Indian status is
“political rather than racial in nature”). For federal prosecu-
tions under § 1153, a “defendant’s Indian status is an essential
element . . . which the government must allege in the indict-
ment and prove beyond a reasonable doubt.” United States v.
Bruce, 394 F.3d 1215, 1229 (9th Cir. 2005); cf. United States
v. Cruz, 554 F.3d 840, 850-51 (9th Cir. 2009) (distinguishing
§ 1153 from § 1152, for which Indian status in an affirmative
defense).
Dawn Eagle contends that because the 1990 Amendments
to ICRA defined “Indian” by reference to § 1153, all tribal
prosecutions are subject not only to the federal definition of
“Indian,” but also to § 1153’s Indian-status pleading require-
ment. We disagree. There is no evidence that Congress
intended to incorporate any aspect of § 1153 other than the
definition of “Indian.”
III
Statutory Text
We start, as always, with the statutory text. The 1990
Amendments do not expressly impose § 1153’s federal plead-
ing requirements on tribal prosecutions or otherwise make
Indian status an essential element of every tribal offense. In
arguing otherwise, Dawn Eagle over-reads the statute.
[3] True, the statute defines “Indian” by referencing
§ 1153. See 25 U.S.C. § 1301(4). But that reference simply
“make[s] it plain that the definition of ‘Indian’ is the same as
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‘Indian’ in [§ 1153],” nothing more. Means v. Navajo Nation,
432 F.3d 924, 930 (9th Cir. 2005);1 see United States v.
Maggi, 598 U.S. 1073, 1077-80 (9th Cir. 2010) (discussing
the development of case law interpreting “Indian” as applied
to § 1153). It does not subject the tribes’ inherent prosecu-
torial authority to the federal pleading and proof requirements
of § 1153. “Rather, it enlarges the tribes’ own ‘powers of self-
government’ ” to prosecute all Indians for misdemeanors.
Lara, 541 U.S. at 198 (quoting 25 U.S.C. § 1301(2)).
[4] In the present case, the Tribe exercised its inherent
power of self-government to define its child abuse offense
without an Indian status element and to create a procedural
rule requiring defendants to raise the jurisdictional issue of
Indian status before the Tribe must prove it at trial. While the
Tribe only has jurisdiction over Indians, the Tribe has not
made status as an Indian an essential element of the crime,
and Congress has not required it to do so. Thus, the Tribe was
not required to plead and prove Dawn Eagle’s Indian status
beyond a reasonable doubt when Dawn Eagle did not raise the
issue.
IV
Legislative Intent
[5] Were this not clear from the text and purpose of the
1990 Amendments, the legislative history would leave no
doubt.
Congress understood that the “definition of ‘Indian’ for
purposes of 18 U.S.C. [§ ]1153 was used in the 1990 amend-
ments to the Indian Civil Rights Act so that there would be
a consistent definition of ‘Indian’ in the exercise of jurisdic-
1Thus, in Means, we concluded that “all Indians” under ICRA meant
“all of Indian ancestry who are also Indians by political affiliation, not all
who are racially Indians.” 432 F.3d at 930.
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tion by either the Federal government or a tribal government.”
S. REP. NO. 102-168, at 6 (1991) (emphasis added). Congress
recognized that “[i]n most cases, status as an Indian for pur-
poses of 18 U.S.C. [§ ] 1153 is an element of proof” but chose
not to incorporate this requirement. Id. at 5; see also H.R.
REP. NO. 102-61, at 4 (1991) (Section 1153 “is relevant in that
Federal criminal prosecutions under Section 1153 . . . have
resulted in a body of case law with regard to who is an Indian
for purposes of Section 1153. [The 1990 Amendments] incor-
porate[ ] this case law through its definition of ‘Indian’, and
thereby provide[ ] some consistency between federal and
tribal criminal prosecutions with regard to the class of per-
sons subject to such prosecutions.”) (all emphases added).
[6] We therefore conclude that to the extent ICRA, as
amended, references § 1153 to define “Indian,” it does so to
incorporate the federal definition of “Indian.” ICRA does not
make Indian status an essential element of every tribal misde-
meanor offense.
V
Timely Dispute of Indian Status
Dawn Eagle does not claim that she did not have notice of
the Tribe’s position that she was an Indian or that she timely
disputed her Indian status such that the prosecution was
required to prove that she was an Indian. In any event, we are
satisfied that no due process violation occurred in this case.
With regard to notice, the probable cause statement
attached to the Tribe’s second complaint alleged that Dawn
Eagle was an Indian. Although the Tribe proceeded against
Dawn Eagle only on the first complaint, the second complaint
nevertheless put Dawn Eagle on notice of the Tribe’s position
that she was an Indian.
[7] Dawn Eagle therefore could have timely disputed the
issue of Indian status, but she did not. Instead, she waited
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until her closing argument to assert that the prosecution had
failed to prove that she was an Indian. Dawn Eagle did not
contend that the tribal court lacked jurisdiction over her
because she was not an Indian; she only asserted that the pros-
ecution had failed to prove she was an Indian. Even assuming
this was sufficient to raise the jurisdictional issue, it was
untimely. Because section 1-21-030 requires the tribal prose-
cution to prove Indian status beyond a reasonable doubt, it
implicitly contemplates that a defendant’s challenge will
come at a point in the case when the prosecution can intro-
duce the required proof. Here, Dawn Eagle waited until after
the close of evidence at trial—a point when the time to prove
her Indian status had passed—before she raised the issue.
Dawn Eagle waited too long.
VI
Conclusion
[8] We affirm the district court’s denial of Dawn Eagle’s
petition for a writ of habeas corpus. Indian status is not an
essential element of the tribal misdemeanor offense of which
Dawn Eagle was convicted, and the Tribe was not required to
prove it beyond a reasonable doubt when she did not timely
raise the issue.
AFFIRMED.
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