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United States v. Loera

United States District Court, D. Arizona

June 7, 2016

United States of America, Plaintiff,
v.
Julian Ismael Loera, Defendant.

          ORDER

          HONORABLE G. MURRAY SNOW JUDGE

         Pending 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. 29.)[1] For the following reasons, the Court affirms.

         BACKGROUND

         I. Procedural Background

         On 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.

         A month 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.)

         Loera 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).

         II. Factual Background

         The 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 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 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 ...

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