United States District Court, D. Arizona
Julian Ismael Loera, Defendant: Luke Stephen Mulligan, LEAD ATTORNEY, Federal Public Defenders Office, Flagstaff, AZ.
For USA, Plaintiff: Paul V Stearns, LEAD ATTORNEY, U.S. Attorneys Office - Flagstaff, AZ, Flagstaff, AZ.
Mark E. Aspey, United States Magistrate Judge.
MEMORANDUM AND ORDER
Before the Court is Defendant's motion (Doc. 10) to dismiss the charge against him, alleging an assault by striking, beating or wounding, in violation of 18 U.S.C. § 113(a)(4) and 18 U.S.C. § 1152, a Class B misdemeanor also referred to as a petty offense. 
Defendant's motion and the government's response raise matters for the Court's consideration which other courts have left for another day. See Means v. Navajo Nation, 432 F.3d 924, 934-35 (9th Cir. 2005). The resolution of the issues requires the Court to journey into the world of " Indian Law" which has been described as a " complex patchwork of federal, state and tribal law, which is better explained by history than by logic." United States v. Bruce, 394 F.3d 1215, 1218 (9th Cir. 2005) (internal quotations omitted). Indian law has also been described
as " schizophrenic" : " Federal Indian policy is, to say the least, schizophrenic. And the confusion continues to inform federal Indian law..." United States v. Lara, 541 U.S. 193, 219, 124 S.Ct. 1628, 1644-45, 158 L.Ed.2d 420 (2004) (Thomas, J., concurring).
The issues raised in this matter are:
1. After considering the factors found in Bruce, is Defendant an " Indian" as that term is used in 18 U.S.C. § 1152?
2. As a matter of law, assuming Defendant is an Indian and because he is not charged with a crime found in the Major Crimes Act (18 U.S.C. § 1153), to what type of Indian does 18 U.S.C. § 1152 convey immunity from federal prosecution?
A criminal complaint docketed in the United States District Court for the District of Arizona on February 8, 2013, alleges that on February 2, 2013, on the Fort Mojave Indian Reservation, in the District of Arizona, Defendant, alleged by the government to be a " non-Indian", knowingly and recklessly assaulted a female Indian, i.e., an enrolled member of the Fort Mojave Indian Tribe. The complaint charges Defendant committed an assault by striking, beating or wounding, in violation of 18 U.S.C. § 113(a)(4) and 18 U.S.C. § 1152. Section 1152, also known as the " General Crimes Act," authorizes federal jurisdiction over certain crimes committed by non-Indians against Indians in Indian country.
Section 1152 provides:
Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.
This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.
On March 6, 2013, Defendant filed a motion to dismiss the charge, arguing the Court does not have jurisdiction to prosecute him pursuant to section 1152 because he is an " Indian" and the statute precludes federal jurisdiction over Indian-on-Indian crimes in Indian country. At the parties' request the Court held an evidentiary hearing with regard to the issue on April 19, 2013, and March 8, 2013. The parties were ordered to and did submit proposed findings of fact and conclusions of law on June 14, 2013. See Doc. 26 & Doc. 27. For the reasons that follow, Defendant's motion to dismiss the charge against him is denied.
Federal Rule of Criminal Procedure 12(b)(2) provides " [a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." Fed. R. Crim. P. 12(b)(2). A charge in a complaint may be dismissed if it is subject to a defense that may be decided solely on issues of law. See United States v. Schafer, 625 F.3d 629, 636-37 (9th Cir. 2010), cert. denied, 131 S.Ct. 2919, 179 L.Ed.2d 1259 (2011); United States v. Flores, 404 F.3d 320, 324 (5th Cir. 2005) (holding the propriety of granting a motion to dismiss an indictment by pretrial motion is " contingent upon whether the infirmity in the prosecution is essentially one of law or involves determinations of fact." ). Rule 12(b), Federal Rules of Criminal Procedure, may be utilized to challenge the Court's criminal jurisdiction over a specific
defendant. See United States v. Nukida, 8 F.3d 665, 669 (9th Cir. 1993); United States v. Marzook, 426 F.Supp.2d 820, 823-24 (N.D.Ill. 2006); United States v. Bodmer, 342 F.Supp.2d 176, 180 (S.D.N.Y. 2004).
However, in some instances, subject matter jurisdiction turns on contested facts. In such a case, it is for the fact-finder to resolve the contested facts. Arguments raised in a motion to dismiss that rely on disputed facts should be denied. United States v. Caputo, 288 F.Supp.2d 912, 916 (N.D.Ill. 2003), citing United States v. Shriver, 989 F.2d 898, 906 (7th Cir. 1992). In United States v. Zepeda, 705 F.3d 1052, 1056 (9th Cir. 2013), the Ninth Circuit indicated " ...it is the special province of the jury to resolve any factual disputes arising under the two prongs of the Bruce test." 
Native American tribes generally have exclusive jurisdiction over crimes committed by Indians against Indians in Indian country.  Two federal statutes, however, provide for federal jurisdiction over some crimes committed in Indian country. As quoted supra, the General Crimes Act, 18 U.S.C. § 1152, grants federal jurisdiction over certain crimes committed by non-Indians against Indians in Indian Country, but excludes from federal jurisdiction crimes committed by one Indian against another. The Major Crimes Act, 18 U.S.C. § 1153, authorizes federal jurisdiction over criminal cases in which an Indian commits one of a list of enumerated crimes against another Indian in Indian country. 
Defendant contends he is an " Indian" and, therefore, that he may not be prosecuted in federal court pursuant to section 1152 for the pending Class B misdemeanor assault.
In a case brought by the government pursuant to 18 U.S.C. § 1152, the defendant has the burden of raising his Indian status as an affirmative defense and carrying the initial burden of production for that issue by a preponderance of the evidence. Once a defendant has met his burden of production, the burden shifts to the government to disprove the defense beyond a reasonable doubt. See United States v. Maggi, 598 F.3d 1073, 1081 n.3 (9th Cir. 2010)  ; United States v. Cruz, 554 F.3d 840, 850 n.16 (9th Cir. 2009); Bruce, 394 F.3d at 1222-23. The test applied by the court to reach this determination is derived from United States v. Rogers, 45 U.S. (4 How.) 567, 11 L.Ed. 1105 (1846). In Rogers the Supreme Court interpreted a predecessor of section 1152 and held that the defendant's adoption into an Indian tribe as an adult did not establish that he was an Indian for purposes of establishing federal criminal jurisdiction over a crime committed in Indian country. See 45 U.S. at 573-74. The Supreme Court held that the fact the defendant had been recognized as an Indian by a tribe was not sufficient to prove his Indian status; some evidence of Indian blood was also necessary. Id. at 573.
In other non-criminal areas of federal law, Congress has defined the term " Indian" differently than the term has been defined by the federal courts with regard to sections 1152 and 1153. See United States v. LaBuff, 658 F.3d 873, 877 (9th Cir. 2011), cert. denied, 132 S.Ct. 1855, 182 L.Ed.2d 647 (2012). To resolve the issue of who is an " Indian" for purposes of section 1152, in jurisdictions controlled by the precedent of the Ninth Circuit Court of Appeals, the District Courts apply the test stated in Bruce.
See, e.g., Maggi, 598 F.3d at 1082.  Pursuant to the Ninth Circuit's decision in Bruce, a defendant is an " Indian" for purposes of criminal prosecution by the federal government if he has: (1) Native American ancestry to a federally-recognized Indian tribe; and (2) tribal or federal government recognition as an Indian. See Bruce, 394 F.3d at 1223-24.
Findings of Fact
Based upon the stipulations of the parties and the two days of evidentiary hearings, pursuant to Rule 23(c), the Court
makes the following findings of material fact:
1. Defendant was born in 1981 and is 32 years of age. Defendant was born " off" the Fort Mojave Indian Reservation because there was no hospital on the reservation.
2. Defendant is, by blood quantum, 3/16 Fort Mojave Indian, all derived from his mother who is an enrolled member of the Fort Mojave Indian Tribe. Defendant's mother's blood quantum is 3/8 Fort Mojave Indian. Defendant's biological father is Hispanic. Defendant does not and has not had contact with his biological father.
3. Defendant has been denied enrollment as a member of the Fort Mojave Indian Tribe, a federally-recognized tribe. Defendant was denied membership because, pursuant to its Constitution, the tribe requires a 1/4 Fort Mojave blood quantum to be entitled to membership. Defendant was denied enrollment in the Fort Mojave Indian Tribe on or about February 11, 2006. According to his mother, Defendant was denied enrollment in the Fort Mojave Indian Tribe on two other occasions.
4. Defendant's mother, aunt, grandmother, and son are enrolled members of the Fort Mojave Indian Tribe.
5. Defendant was raised primarily by his mother and his aunt. His aunt, an enrolled member of the Fort Mojave Indian Tribe, lives on the Fort Mojave Indian Reservation. Defendant's mother resides near but off the reservation.
6. When Defendant was growing-up he lived a majority of the time on the Fort Mojave Indian Reservation with his aunt, and he also lived for some time off the reservation with his mother.
7. The Fort Mojave Indian Health Center is operated by the Fort Mojave Indian Tribe pursuant to a " 638 contract" with the federal government, pursuant to the Indian Self-Determination and Education Assistance Act, Pub. L. No. 93-638,, codified at 25 U.S.C. § § 450, et seq.
8. To be eligible for treatment at the Fort Mojave Indian Health Center, patients must provide either proof of enrollment in a federally-recognized Indian tribe or proof they are descended from a member of a federally-recognized Indian tribe.
9. Defendant is eligible to receive health care treatment from the Fort Mojave Indian Health Center, which has facilities in Needles, California, and Mohave Valley, Arizona. Defendant is eligible for these services because he is a descendant of an enrolled member of a federally-recognized Indian tribe.
10. Defendant received healthcare treatment at the Fort Mojave Indian Health Center in Mohave Valley, Arizona, on at least three occasions in 2008 and on February 24, 2012, and October 31, 2012.
11. Defendant has received services from the Fort Mojave Indian Tribe Behavioral Health Department on at least forty different occasions between July 2, 2007, and February 23, 2010.
12. There is no admissible evidence that Defendant ever received medical service from a federal " Indian Health Services" (" IHS" ) facility, or that he received services which were paid for by IHS. However, the Court notes that, as a descendant of a member of a federally-recognized Indian tribe, Defendant might be eligible to receive services from IHS. See 25 U.S.C. § 1603(13).
13. Defendant attended grade school and most of high school at Arizona public schools that were located off the Fort Mojave Indian Reservation. Defendant did briefly attended high school on the Fort
Mojave Indian Reservation after a high school was established on ...