United States District Court, D. Arizona
HONORABLE G. MURRAY SNOW JUDGE
before the Court is Mr. Julian Loera’s appeal from the
judgment of United States Magistrate Judge Mark Aspey denying
Loera’s motion to dismiss for lack of jurisdiction
based on his claimed Indian status. (Mag. Doc.
For the following reasons, the Court affirms.
February 8, 2013, Loera was charged by complaint with assault
pursuant to 18 U.S.C. § 113(a)(4) which alleged that
Loera, a non-Indian, assaulted, struck, and beat an Indian
victim. (Mag. Doc. 1.) Federal subject-matter jurisdiction
was supplied by 18 U.S.C. § 1152, which extends the
reach of the "general laws of the United States as to
the punishment of offenses" committed any place within
the jurisdiction of the United States "to the Indian
country." Section 1152, however, does not extend such
jurisdiction when the offense is "committed by one
Indian against the person or property of another Indian . . .
." Loera filed a motion to dismiss and argued that the
court lacked subject-matter jurisdiction since Loera is an
Indian for purposes of § 1152. After a two-day hearing,
the Magistrate Judge denied his motion.
later, the parties filed a stipulated/joint motion seeking
permission to file a superseding Information charging Loera
with disorderly conduct (Count 1) and assault (Count 2). The
Magistrate Judge granted the stipulation/joint motion. Loera
then pleaded guilty to Count 1. The plea agreement preserved
Loera’s right to appeal "this case on the sole
issue of whether the defendant is an Indian for purposes of
jurisdiction under 18 U.S.C. § 1152." (Mag. Doc. 41
at 3.) The Magistrate Judge accepted the plea, and Loera
eventually was sentenced to time served. (Mag. Doc. 43, 44.)
timely filed his notice of appeal, which the parties fully
briefed after the conclusion of an initial stay granted by
this Court to allow the Ninth Circuit to consider en
banc the case of United States v. Zepeda, 742
F.3d 910 (9th Cir. 2014).
Court adopts the factual findings of the magistrate court,
none of which was significantly challenged by the parties:
1. Defendant was born in 1981 and is 32 years of age.
Defendant was born "off" the Fort Mojave Indian
Reservation [(the "Tribe")] 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
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
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
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
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
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,
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.
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 the reservation.
14. Defendant received tutoring services through the Fort
Mojave Indian Tribe while he was attending elementary and
high school. He received those services through the Fort
Mojave Indian Tribe because he is a descendant of an enrolled
member of the tribe. Defendant has not received these
services since at least the age of 16.
15. As a juvenile, Defendant received breakfast and lunch
through the Tribal Nutrition Program.
16. For approximately two years when he was nine to eleven
years of age, during the summer, Defendant attended classes
at the Fort Mojave Cultural Department.
17. As a juvenile, eighteen separate cause numbers were filed
with regard to Defendant in Fort Mojave Tribal Court,
including obstruction of police duties and underage
consumption of alcohol. As an adult, Defendant has received
civil citations from the Tribal Police as a result of his
actions on the reservation.
18. Defendant is not fluent in the Fort Mojave Indian
language. He knows less than twenty words of the language and
is self-taught. His aunt and his mother are not fluent in the
language, and very ...