Court revises test on who is Native American

By Associated Press

FLAGSTAFF (AP) — Attorneys in federal cases stemming from crimes on American Indian reservations have new guidance on what’s needed to prove a defendant is Indian.

Federal authorities have jurisdiction over major crimes on tribal land when the victim, suspect or both are American Indian. A two-part test determines who is Indian.

The 9th U.S. Circuit Court of Appeals revised the first part of that test in an opinion Tuesday — no longer requiring that the degree of Indian blood be traced to a federally recognized tribe — and restored an Arizona man’s 90-year sentence on assault and firearms charges.

The court said evidence at trial was enough to find Damien Zepeda is American Indian. Zepeda, an enrolled member of the Gila River Indian Community, disagreed.

“That’s why it was so important to clarify that the proof in this case was sufficient,” said Arthur Hellman, a University of Pittsburgh law professor who monitors the 9th Circuit. “This will lay down the rule for future prosecutors.”

In 2013, a three-judge panel of the 9th Circuit ruled prosecutors did not prove beyond a reasonable doubt that Zepeda’s bloodline of one-quarter Pima and one-quarter Tohono O’odham derived from an American Indian tribe recognized by the U.S. Bureau of Indian Affairs. It reversed all but one of nine convictions and ordered a lower court to resentence him.

The panel also said federal recognition of a tribe is a matter for a jury to decide.

The court revised its opinion in September 2013 and said federal recognition is a question of law to be decided by a judge. The full 9th Circuit agreed Tuesday.

The new opinion reinstates Zepeda’s convictions and sentence, and modifies what’s known as the Bruce test for determining who is American Indian.

Under the revised test, a defendant still must be a member of or affiliated with a federally recognized tribe, and have a degree of Indian blood. But the defendant’s blood quantum no longer must be traced to a federally recognized tribe.

The full 9th Circuit said the test was satisfied with Zepeda’s tribal enrollment certificate, testimony by Zepeda’s brother that their father was an Indian, and the Gila River Indian Community being a federally recognized tribe.

Zepeda’s attorney, Michele Moretti, said Wednesday she would appeal to the U.S. Supreme Court. Federal prosecutors declined to comment.

The 9th Circuit had placed several other cases dealing with Indian status on hold until it addressed the question in Zepeda’s case.

The court was unanimous its ruling, but Judges Alex Kozinski and Sandra Ikuta disagreed with the reasoning. They said the Bruce test as refined by the majority violates equal protection rights because it turns on race, not political affiliation.

Kozinski said the U.S. Supreme Court has stressed that federal regulation of tribes does not equate to federal regulation of the Indian race.

“Damien Zepeda will go to prison for over 90 years because he has ‘Indian blood,’ while an identically situated tribe member with different racial characteristics would have had his indictment dismissed,” Kozinski wrote.

Rob Williams, a University of Arizona law professor, said the cases raises interesting questions about identity, who asserts that identity and what makes someone Indian.

Standards vary among federal agencies that administer benefits to tribes and in the court system about what defines Indians, he said. Some tribes use blood quantum to determine membership, while others require ancestry to be traced to the original rolls.

“This is what is unique about federal Indian law as opposed to other countries,” he said. “There is no uniform definition of who an Indian is.”

Language factors into race for Navajo president

by FELICIA FONSECA, Associated Press


FLAGSTAFF, Ariz. (AP) – Chris Deschene says he has the resume to preside over the country’s largest American Indian reservation. He’s a graduate of the U.S. Naval Academy, served in the Marines, owns a private law practice, and aims to defend tribal tradition in the Navajo Nation’s top elected post.

But his critics say he’s missing at least one thing, and it’s crucial. They say he doesn’t know how to speak Navajo fluently and should be disqualified from the presidential race because it is a requirement for candidates under tribal law. Deschene says fluency is a matter of opinion and that his language skills are getting better every day.

The issue came to a head when several Navajo citizens and presidential candidates filed grievances against Deschene, saying he shouldn’t appear on the ballot in November’s general election. The challenges were dismissed this week as being untimely or lacking standing, but they can be appealed to the tribe’s Supreme Court.

The Navajo language is a vital part of the tribe’s culture, most commonly spoken among elderly Navajo people as their first language and less so among younger generations. Most tribal members grow up hearing it at home and in prayers and songs recited during ceremonies. It is perhaps most well-known outside the reservation for its use during World War II in a code that the Japanese couldn’t break.

When Navajos sign up to run for tribal president, they attest to being fluent in the language. Kimmeth Yazzie of the Navajo Election Administration says the document is taken at face value, and election officials aren’t allowed to investigate the qualifications. That authority is delegated to the tribe’s Office of Hearings and Appeals when candidates for the same office file a challenge within a certain timeframe.

Deschene, 43, said he has never misled voters into believing he thoroughly knows the language. He speaks Navajo in online advertisements, in the homes of elders and says he’s well-versed in traditional songs and ceremonies.

“I’ve made a commitment to the language, and I’ve stated a number of times that my personal goal is to be completely fluent by the end of my first term,” said Deschene, of LeChee on the western side of the reservation.

Percy Deal, one of Deschene’s critics on the language issue, commended Deschene for his willingness to learn Navajo but said he should become fluent and seek office again in four years. Deschene should understand as a lawyer, former Democratic nominee for Arizona secretary of state and onetime state representative that he shouldn’t skirt the law, Deal said.

“The laws have to apply to everybody,” he said. “Nobody is above the law.”

Determining whether a person is fluent isn’t easy, said Michele Kiser, who teaches Navajo at the University of New Mexico in Albuquerque. She said teachers can take a proficiency test that includes speaking, reading and writing, but there is not a set of defined parameters for determining fluency.

“Fluency is a continuum, really,” she said.

Some 169,000 people speak Navajo at home, more than any other American Indian language, according to census figures released in 2011. But Kiser said that data doesn’t show how many are considered fluent speakers.

Deschene came in second to former Navajo President Joe Shirley Jr. in the tribe’s primary election last month among 17 candidates, earning him a spot in the general election. Traditional, conservative voters tend to choose candidates who can speak Navajo, understand them and who have a strong cultural upbringing, said Manley Begay, who is Navajo and a professor in applied indigenous studies at Northern Arizona University.

“Clearly there were some of the traditionalists supporting Chris Deschene, partly because of his appeal and youthfulness and also some of his ideas and thoughts might resonate with them,” Begay said.

The grievances filed against Deschene were the first over the language requirements, said Richie Nez, chief hearing officer for the Office of Hearings and Appeals.

Other presidential candidates have been challenged on term limits and residency, though living or having a continual presence on the reservation is no longer required.

Shirley lost a bid four years ago to seek a third, consecutive term because Navajo law limits presidents to two back-to-back terms. Shirley argued that Navajos have the right to freely choose their leaders under traditional law.

A presidential candidate in 2002 argued that he met residency requirements for the job despite living off the reservation because his umbilical cord was buried there, forever tying him to the land. Edward T. Begay’s name was placed on the primary ballot as a matter of fairness, after the tribe’s high court determined all candidates were not treated equally.