Supplemental Brief for the National Association of Criminal Defense Lawyers and the Ninth Circuit Federal Public and Community Defenders as Amici Curiae in Support of Defendant-Appellant.

Argument: Rogersrequires the government to prove that a section 1153(a) defendant has a blood tie to an Indian tribe. Equal Protection demands that the blood tie be to a federally-recognized tribe – not to a racial group. A naked “blood” tie requirement would violate equal protection principles. An ancestral tie to a federally-recognized tribe is a political affiliation. Overruling Maggi would create a conflict in authority. No court has considered the question posed here—whether the “blood” tie should be political or racial – and concluded, as the government urges, that a mere racial tie is sufficient. The Court should confirm Maggi: Section 1153 requires the government to prove, in part, that a defendant has an ancestral tie to a federally-recognized Indian tribe.

Brief for the National Association of Criminal Defense Lawyers and the Ninth Circuit Federal Public and Community Defenders as Amici Curiae in Support of Defendant-Appellant.

Argument: The Major Crimes Act requires the government to prove that the defendant has both ancestral and political affiliation with a federally-recognized tribe. Indian status is an element of the offense that the government must allege in the indictment and prove to a jury. Zepeda’s conviction must be reversed. The jury instruction was plain error. No rational jury could conclude that Zepeda satisfies the ancestral requirement of Section 1153. The government failed to demonstrate at trial that the Tohono O’Odham Nation of Arizona is a federally-recognized tribe. The government failed to demonstrate that Zepeda’s heritage derives from the Tohono O’Odham Nation of Arizona.