United States v. Damien Zepeda

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-10131
Plaintiff-Appellee,
D.C. No.
v. 2:08-cr-01329-ROS-1

DAMIEN ZEPEDA,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Chief District Judge, Presiding

Argued and Submitted
July 17, 2012—San Francisco, California

Filed September 19, 2013

Before: Ferdinand F. Fernandez, Richard A. Paez,
and Paul J. Watford, Circuit Judges.

Opinion by Judge Paez;
Dissent by Judge Watford
2 UNITED STATES V. ZEPEDA

SUMMARY*

Criminal Law

The panel reversed jury convictions under the Major
Crimes Act, 18 U.S.C. § 1153, which provides for federal
jurisdiction for certain crimes committed by Indians in Indian
country.

The panel held that the district court did not plainly err in
admitting a tribal enrollment certificate into evidence
pursuant to the parties’ stipulation.

The panel held that the question of whether a tribe is
federally recognized, as required for jurisdiction under
§ 1153, is a question of law; and that both the “Gila River
Indian Community of the Gila River Indian Reservation,
Arizona” and the “Tohono O’odham Nation of Arizona” are
federally-recognized tribes.

The panel held that the tribal enrollment certificate was
insufficient to establish that the defendant is an Indian for
purposes of federal jurisdiction under § 1153, where the
government introduced no evidence that the defendant’s
bloodline is derived from a federally recognized tribe.

The panel remanded for resentencing on a conspiracy
conviction unaffected by this disposition.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. ZEPEDA 3

Dissenting, Judge Watford disagreed with the majority’s
determination that the government failed to present sufficient
evidence from which a rational jury could infer that the
defendant has a blood connection to a federally recognized
tribe.

COUNSEL

Michele R. Moretti, Law Office of Michele R. Moretti, Lake
Butler, Florida, for Defendant-Appellant.

Joan G. Ruffennach (argued), Assistant United States
Attorney, Office of the United States Attorney, Phoenix,
Arizona, for Plaintiff-Appellee.

OPINION

PAEZ, Circuit Judge:

On October 25, 2008, Damien Zepeda (“Zepeda”)
traveled with his brothers Jeremy and Matthew Zepeda
(“Matthew”) to the home of Dallas Peters (“Peters”), located
on the Ak–Chin Reservation of Arizona. Zepeda and
Matthew opened fire upon the house’s occupants, injuring
Peters severely. In a nine-count indictment, the government
charged Zepeda with, inter alia, conspiracy to commit
assault, assault with a deadly weapon, and use of a firearm
during a crime of violence.1 The indictment alleged that

1
The nine counts included: (1) conspiracy to commit assault with a
dangerous weapon and assault resulting in serious bodily injury, in
violation of 18 U.S.C. §§ 1153, 371, and 2; (2) assault resulting in serious
4 UNITED STATES V. ZEPEDA

Zepeda was an “Indian[].” Following a jury trial, Zepeda was
convicted of all counts.

The Major Crimes Act, 18 U.S.C. § 1153, provides for
federal jurisdiction for certain crimes committed by Indians
in Indian country.2 The statute does not define who is an
Indian, and determining the proper boundaries of federal
jurisdiction over Indians is a formidable task. It is now well-
settled in this circuit that we apply the two-part test
articulated in United States v. Bruce, 394 F.3d 1215 (9th Cir.
2005) to determine who is an Indian. We consider: (1) the
defendant’s degree of Indian blood, and (2) the defendant’s
tribal or government recognition as an Indian. Id. at 1223;
United States v. Cruz, 554 F.3d 840, 845 (9th Cir. 2009).
More recently, we clarified that the first of these two prongs
requires that the defendant’s “bloodline be derived from a
federally recognized tribe.”3 United States v. Maggi,
598 F.3d 1073, 1080 (9th Cir. 2010).

bodily injury against Dallas Peters, in violation of 18 U.S.C. §§ 1153,
113(a)(6) and 2; (3) use of a firearm during a crime of violence as charged
in count 2, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2; (4), (6), (8)
assault with a dangerous weapon against Dallas Peters, Stephanie Aviles,
and Jane Doe, in violation of 18 U.S.C. §§ 1153, 113(a)(3), and 2; and,
(5), (7), (9) use of a firearm during the crimes of violence charged in
counts 4, 6, and 8, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2. Aviles
was Zepeda’s ex-girlfriend and Doe was Aviles’s cousin. Both were
present at the Peters residence on the night of the shooting.
2
Although we are mindful that the term “Native American” or
“American Indian” may be preferable, we use the term “Indian”
throughout this opinion since that is the term used in 18 U.S.C. § 1153 and
at issue in this appeal.
3
In this opinion, we consider the first prong only.
 UNITED STATES V. ZEPEDA 5

This appeal calls upon us to decide whether a Certificate
of Enrollment in an Indian tribe, entered into evidence
through the parties’ stipulation, is sufficient evidence for a
rational juror to find beyond a reasonable doubt that the
defendant is an Indian for the purposes of § 1153 where the
government offers no evidence that the defendant’s bloodline
is derived from a federally recognized tribe. We hold that it
is not.

I.

At Zepeda’s trial, the government introduced into
evidence, as Exhibit 1, a document entitled “Gila River
Enrollment/Census Office Certified Degree of Indian
Blood.”4 The document bore an “official seal” and stated that
Zepeda was “an enrolled member of the Gila River Indian
Community,” and that “information [wa]s taken from the
official records and membership roll of the Gila River Indian
Community.” It also stated that Zepeda had a “Blood
Degree” of “1/4 Pima [and] 1/4 Tohono O’Odham” for a total
of 1/2. The Certificate was signed by “Sheila Flores,” an
“Enrollment Services Processor.” The prosecutor and
Zepeda’s attorney stipulated to admission of the Certificate
into evidence without objection.5 Their stipulation stated:
“The parties have conferred and have agreed that Exhibit 1[,
the Tribal Enrollment Certificate,] . . . may be presented at
trial without objection and [its] contents are stipulated to as
fact.”

4
For the purposes of clarity, we refer to this document as the “Tribal
Enrollment Certificate” or “Certificate” throughout.
5
The stipulation, which was signed by counsel, was admitted into
evidence as Exhibit 48.
6 UNITED STATES V. ZEPEDA

The Tribal Enrollment Certificate was published to the
jury through the testimony of Detective Sylvia Soliz, a
detective for the Ak–Chin Police Department, who told the
jury that she obtained the Certificate from the Gila River
Indian Community in advance of trial, “confirming” that
Zepeda was an enrolled member. The colloquy between
Soliz and the prosecutor proceeded as follows:

Q: [W]e’ve talked a little bit about Native
Americans and Indian blood and that sort of
thing. Is this a jurisdictional requirement that
you have? Explain that for the jury.

A: Yes, it is. I am only able to investigate if
the witness would come to a federal status and
the victim was an enrolled member of a tribe
or – and if it occurred on the reservation
boundaries.

...

Q: You talked about a certification of Indian
blood. What is that?

A: It’s a piece of paper confirming through
the tribe that you obtained from the
enrollment office that confirms that this
person is an enrolled member of their tribe
and he[,] and they[,] do meet the blood
quantum.

Q: And is that sometimes used in determining
whether that person might be able to receive
tribal benefits from the tribe?
 UNITED STATES V. ZEPEDA 7

A: Yes, it does.

Zepeda’s brother Matthew also testified regarding
Zepeda’s Indian status. Matthew testified that he was half
“Native American,” from the “Pima and Tiho” tribes, and that
his Indian heritage came from his father. He also testified
that he and Zepeda shared the same father, as well as the
same mother, who was “Mexican.”

No further evidence regarding Zepeda’s Indian status was
admitted. At the close of the government’s case in chief,
Zepeda moved for a judgment of acquittal under Federal Rule
of Criminal Procedure 29, arguing that insufficient evidence
supported his convictions.6 The court denied his motion.
Zepeda renewed his motion at the close of the evidence, and
again, his motion was denied.

On appeal, Zepeda argues, inter alia, that the government
failed to prove beyond a reasonable doubt that he was an
Indian under § 1153. We agree.

6
We note that although Zepeda did not present argument to the district
court regarding the sufficiency of the evidence of his Indian status, “Rule
29 motions for acquittal do not need to state the grounds upon which they
are based because ‘the very nature of such motions is to question the
sufficiency of the evidence to support a conviction.’” United States v.
Viayra, 365 F.3d 790, 793 (9th Cir. 2004) (quoting United States v.
Gjurashaj, 706 F.2d 395, 399 (2d Cir. 1983)); see also Cruz, 554 F.3d at
844 n.4; United States v. South, 28 F.3d 619, 627 (7th Cir. 1994)
(concluding that “Rule 29 does not require anything more” than “to put the
government on notice that [a defendant] was contesting the sufficiency of
the evidence in support” of a conviction); 8A Moore’s Federal Practice
¶ 29.03(1), at 29–8 (2d ed. 1989); 2 Charles A. Wright, Federal Rules of
Criminal Procedure § 466, at 653 (2d ed. 1982) (“Specificity is not
required by Rule 29.”).
8 UNITED STATES V. ZEPEDA

II.

Indian “tribes generally have exclusive jurisdiction over
crimes committed by Indians against Indians in Indian
country.”7 United States v. LaBuff, 658 F.3d 873, 876 (9th
Cir. 2011). As we explained in United States v. Begay,
42 F.3d 486 (9th Cir. 1994):

Indian tribes are recognized as quasi-
sovereign entities that may regulate their own
affairs except where Congress has modified or
abrogated that power by treaty or statute.
Courts have also recognized, however, that
regulation of criminal activity in Indian
country is one area where competing federal
interests may override tribal interests.

Id. at 498.

To balance the sovereignty interest of Indian tribes and
the United States’s interest in punishing offenses committed
in Indian country, Congress enacted two statutes, 18 U.S.C.
§§ 1152 and 1153. Id. Section 1152, the General Crimes

7
“[T]he term ‘Indian country’ . . . means (a) all land within the limits of
any Indian reservation under the jurisdiction of the United States
Government . . . (b) all dependent Indian communities within the borders
of the United States whether within the original or subsequently acquired
territory thereof . . . and (c) all Indian allotments, the Indian titles to which
have not been extinguished, including rights-of-way running through the
same.” 18 U.S.C. § 1151.
 UNITED STATES V. ZEPEDA 9

Act,8 grants federal jurisdiction over certain crimes
committed in Indian country by non-Indians against Indians
and vice versa, but excludes crimes committed by one Indian
against another. Id.; LaBuff, 658 F.3d at 876. Section 1153,
the Major Crimes Act,9 creates federal jurisdiction for cases

8
Section 1152 provides that:

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.

18 U.S.C. § 1152.
9
Section 1153(a) provides:

Any Indian who commits against the person or property
of another Indian or other person any of the following
offenses, namely, murder, manslaughter, kidnaping,
maiming, a felony under chapter 109A, incest, assault
with intent to commit murder, assault with a dangerous
weapon, assault resulting in serious bodily injury (as
defined in section 1365 of this title), an assault against
an individual who has not attained the age of 16 years,
felony child abuse or neglect, arson, burglary, robbery,
and a felony under section 661 of this title within the
Indian country, shall be subject to the same law and
10 UNITED STATES V. ZEPEDA

in which an Indian commits one of a list of thirteen
enumerated crimes in Indian country. Id. The government
charged Zepeda and prosecuted him under the latter statute.

The question of Indian status operates as a jurisdictional
element under § 1153. Cruz, 554 F.3d at 843; Bruce,
394 F.3d at 1228. Nonetheless, we have held that Indian
status “is an element of the offense that must be alleged in the
indictment and proved beyond a reasonable doubt.” Maggi,
598 F.3d at 1077 (citing Cruz, 554 F.3d at 845; Bruce,
394 F.3d at 1229). We have also held that whether a
defendant is an Indian is a mixed question of fact and law that
must be determined by the jury.10 See Bruce, 394 F.3d at
1218, 1223, 1229; see also Maggi, 598 F.3d at 1077; Cruz,
554 F.3d at 845. Indeed, it is the special province of the jury
to resolve any factual disputes arising under the two prongs
of the Bruce test. See Bruce, 394 F.3d at 1223; Maggi,
598 F.3d 1082-83; Cruz, 554 F.3d at 846-47.

“Although jurisdictional questions are ordinarily reviewed
de novo, when a defendant brings a motion for acquittal in
order to challenge the sufficiency of the evidence underlying
a jurisdictional element, we owe deference to the jury’s

penalties as all other persons committing any of the
above offenses, within the exclusive jurisdiction of the
United States.

18 U.S.C. § 1153(a).
10
As we explained in Bruce, “[m]ixed questions of law and fact are
those in which ‘the historical facts are admitted or established, the rule of
law is undisputed, and the issue is whether the facts satisfy the statutory
standard.’” 394 F.3d at 1218 (quoting Pullman-Standard v. Swint,
456 U.S. 273, 289 n. 19 (1982)).
 UNITED STATES V. ZEPEDA 11

ultimate factual finding.” Cruz, 554 F.3d at 843–44
(emphasis in original). “Accordingly . . . we review the
district court’s decision under the standard applied to
sufficiency-of-the-evidence challenges: ‘whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’”
Id. at 844 (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979) (emphasis omitted)); see also United States v. Nevils,
598 F.3d 1158, 1163–67 (9th Cir. 2010) (en banc).

III.

A.

We first must determine whether the Tribal Enrollment
Certificate was properly admitted into evidence, or rather, as
Zepeda urges, whether its admission violated his rights under
the Confrontation Clause. Because Zepeda did not object at
trial to the district court’s admission of the Certificate
pursuant to the parties’ stipulation, we review for plain error.
United States v. Wright, 625 F.3d 583, 607 (9th Cir. 2010).

“The test regarding the validity of a stipulation is
voluntariness.” United States v. Molina, 596 F.3d 1166,
1168–69 (9th Cir. 2010). We have previously held that
“‘[s]tipulations freely and voluntarily entered into in criminal
trials are as binding and enforceable as those entered into in
civil actions.’” Id. at 1169 (quoting United States v. Technic
Servs., 314 F.3d 1031, 1045 (9th Cir. 2002) (alteration in
original)). “‘[S]tipulations serve both judicial economy and
the convenience of the parties, [and] courts will enforce them
absent indications of involuntary or uninformed consent.’”
Id. (quoting CDN Inc. v. Kapes, 197 F.3d 1256, 1258 (9th
12 UNITED STATES V. ZEPEDA

Cir. 1999) (alterations in original)). “A ‘defendant who has
stipulated to the admission of evidence cannot later complain
about its admissibility’ unless he can show that the stipulation
was involuntary.” Id. (quoting Technic Servs., 314 F.3d at
1045).

Zepeda points to no record evidence that he entered into
the stipulation at issue involuntarily. Rather, he points to a
lack of record evidence that his attorney informed him of the
contents of the stipulation and its legal effect, and asserts that
his counsel’s waiver of his Confrontation Clause rights was
invalid. While his first contention is plausible, Soliz testified
extensively regarding the Tribal Enrollment Certificate’s
contents, referring both to Zepeda’s bloodline and to his
eligibility for benefits from the Gila River Indian
Community. This testimony at least put Zepeda on notice
regarding the contents of the stipulation. Regardless, Zepeda
bears the burden on appeal of pointing to record evidence
showing that his consent was involuntary, and he has not
done so here. See Molina, 596 F.3d at 1169.

Moreover, our case law recognizes that “defense counsel
may waive an accused’s constitutional rights as a part of trial
strategy.” United States v. Gamba, 541 F.3d 895, 900 (9th
Cir. 2008). Counsel’s authority extends to waivers of the
accused’s Sixth Amendment right to cross-examination and
confrontation as a matter of trial tactics or strategy. Wilson
v. Gray, 345 F.2d 282, 287–88 (9th Cir. 1965).

Zepeda argues that waiver of a fundamental constitutional
right cannot ever constitute a sound trial strategy, particularly
where, as here, the Tribal Enrollment Certificate purported to
establish an essential jurisdictional element. It appears from
the record, however, that Zepeda’s attorney strategically
 UNITED STATES V. ZEPEDA 13

focused Zepeda’s defense on the implausibility of
government witnesses’ testimony, as compared to Zepeda’s
markedly different version of the relevant events. He chose
not to direct the jury’s attention to Zepeda’s Indian status, and
informed the jury during his opening statement: “I will
stipulate and concede things that ought to be conceded in
terms of my client, Mr. Zepeda.” Although ultimately not a
winning strategy, it was clearly “deliberately made as a
matter of trial tactics,” and did not involve a “basic trial
right[]” such as the decision “whether to plead guilty, waive
a jury, testify in his . . . own behalf, or take an appeal.”
Gamba, 541 F.3d at 901 (quoting Florida v. Nixon, 543 U.S.
175, 187 (2004) (internal quotation marks omitted)). Nor, as
we discuss at length below, was the Tribal Enrollment
Certificate sufficient to carry the government’s burden of
proof of Zepeda’s Indian status. Thus, Zepeda’s attorney did
not violate Zepeda’s Confrontation Clause rights when he
stipulated to admission of the Certificate. See Gamba,
541 F.3d at 900; Wilson, 345 F.2d at 287.

Accordingly, we conclude that the district court did not
plainly err in admitting the Tribal Enrollment Certificate into
evidence pursuant to the parties’ stipulation.

B.

Having determined that the Tribal Enrollment Certificate
was properly admitted into evidence, we turn to whether,
viewing all evidence in the light most favorable to the
government, any rational juror could have found beyond a
reasonable doubt that Zepeda was an Indian, on the basis of
the slim evidence as to both prongs of the Bruce test. We
begin by explaining that the Bruce test contains an “important
overlay.” Maggi, 598 F.3d at 1078.
14 UNITED STATES V. ZEPEDA

As noted, “[t]he Bruce test requires that the Government
prove two things: that the defendant has a sufficient ‘degree
of Indian blood,’ and has ‘tribal or federal government
recognition as an Indian.’” Cruz, 554 F.3d at 845 (quoting
Bruce, 394 F.3d at 1223, 1224). “The first prong requires
‘some’ Indian blood.” United States v. Ramirez, 537 F.3d
1075, 1082 (9th Cir. 2008) (quoting Bruce, 394 F.3d at 1223).
“Thus, ‘evidence of a parent, grandparent, or great-
grandparent who is clearly identified as an Indian is generally
sufficient to satisfy this prong.’” Id. (quoting Bruce, 394 F.3d
at 1223).

“The second prong requires evidence that ‘the Native
American has a sufficient non-racial link to a formerly
sovereign people.’” Id. (quoting Bruce, 394 F.3d at 1224).
“Courts analyzing this prong have considered evidence of: ‘1)
tribal enrollment; 2) government recognition formally and
informally through receipt of assistance reserved only to
Indians; 3) enjoyment of the benefits of tribal affiliation; and
4) social recognition as an Indian through residence on a
reservation and participation in Indian social life.’” Id.
(quoting Bruce, 394 F.3d at 1224). These four factors “are to
be considered ‘in declining order of importance.’” Cruz,
554 F.3d at 846 n. 6 (quoting Bruce, 394 F.3d at 1224).
“[T]ribal enrollment is ‘the common evidentiary means of
establishing Indian status, but it is not the only means nor is
it necessarily determinative’ . . . . [E]nrollment, and indeed,
even eligibility therefor, is not dispositive of Indian status.”
Id. (quoting Bruce, 394 F.3d at 1224-25 (some alterations in
original)).

Our recent decision in United States v. Maggi made clear
that “[t]here is an important overlay to the Bruce test: To be
considered an Indian under . . . [§] 1153, the individual must
 UNITED STATES V. ZEPEDA 15

have a sufficient connection to an Indian tribe that is
recognized by the federal government. Affiliation with a tribe
that does not have federal recognition does not suffice.”
598 F.3d at 1078 (emphasis in original).

In Maggi, we addressed the consolidated appeals of two
defendants, Gordan Mann and Shane Maggi, both tried and
convicted pursuant to § 1153. Mann was an enrolled member
of the Little Shell Tribe of the Chippewa Cree, a tribe that
was not recognized by the federal government, despite a
longstanding petition for federal recognition. Id. at 1076.
We noted that tribal enrollment records often include
identification of an individual’s percentage of Indian blood,
and that this information is used to establish eligibility for
enrollment. Id. Mann’s enrollment record reflected his
degree of Indian blood as 10/64 Chippewa and 11/64 other
Indian blood. Id. Maggi’s degree of Indian blood was 1/64
Blackfeet tribe, a tribe recognized by the federal government,
and 1/32 Cree tribe. Id. at 1076, 1080–81. The record did
not reflect whether Maggi was descended from a federally
recognized group of the Cree tribe, such as the Rocky Boy
Reservation Chippewa Cree, or a non-recognized group, such
as the Little Shell Tribe Chippewa Cree. Id. Maggi was not
an enrolled member of any tribe, though his mother’s
enrollment in the Blackfeet tribe entitled him to the receipt of
certain limited benefits. Id. at 1076–77. Both Mann and
Maggi argued in the district court that they were not subject
to prosecution under § 1153 because they were not Indians.
Id.

In Maggi, we commented that we had previously
addressed the issue of whether prosecution under § 1153
requires membership in a federally recognized tribe in LaPier
v. McCormick, 986 F.2d 303, 304–06 (9th Cir. 1993). In a
16 UNITED STATES V. ZEPEDA

federal habeas petition under 28 U.S.C. § 2254, LaPier
challenged his Montana state court conviction, maintaining
that he should have been tried for his alleged crime in federal
court under § 1153 because he was an Indian. LaPier, like
Mann, was a member of the Little Shell Tribe of Chippewa
Cree. Id. at 306. We reasoned that it did not need to examine
whether LaPier had shown a sufficient degree of Indian blood
or whether he had a sufficient connection to a tribe because
he had failed to satisfy an antecedent requirement of
affiliation with a federally recognized tribe:

We need not address . . . the question whether
LaPier has shown a significant degree of
blood and sufficient connection to his tribe to
be regarded as one of its members for
criminal jurisdiction purposes. There is a
simpler threshold question that must be
answered first, and in this case it is
dispositive: Is the Indian group with which
LaPier claims affiliation a federally
acknowledged Indian tribe? If the answer is
no, the inquiry ends. A defendant whose only
claim of membership or affiliation is with an
Indian group that is not a federally
acknowledged Indian tribe cannot be an
Indian for criminal jurisdiction purposes.

Id. at 304–05 (internal quotation marks and citations
omitted). We therefore concluded that LaPier was not
entitled to habeas relief.

Maggi recognized that LaPier’s threshold requirement of
affiliation with a federally recognized tribe stemmed from
judicial and legislative acknowledgment that federal criminal
 UNITED STATES V. ZEPEDA 17

jurisdiction over Indians is not dependent on a racial
classification, but upon the federal government’s relationship
with the Indian nations as separate sovereigns. 598 F.3d at
1078–79 (discussing LaPier, 986 F.2d at 305 (“Federal
legislation treating Indians distinctively is rooted in the
unique legal status of Indian tribes under federal law and
upon the plenary power of Congress, based on a history of
treaties and the assumption of a guardian-ward status, to
legislate on behalf of federally recognized Indian tribes.”),
United States v. Antelope, 430 U.S. 641, 646 (1977)
(“[F]ederal regulation of Indian affairs is not based upon
impermissible classifications. Rather, such regulation is
rooted in the unique status of Indians as ‘a separate people’
with their own political institutions. . . . [I]t is not to be
viewed as legislation of a ‘racial’ group consisting of
‘Indians’ . . . .”) (quoting Morton v. Mancari, 417 U.S. 535,
553 n. 24 (1974)), and Means v. Navajo Nation, 432 F.3d
924, 930 (9th Cir. 2005)).

Accordingly, Maggi concluded that LaPier’s requirement
of affiliation with a federally recognized tribe was not altered
or superseded by the test announced in Bruce, “which
presupposes that ‘tribal or government recognition as an
Indian’ means as an Indian from a federally recognized tribe.”
Maggi, 598 F.3d at 1079 (quoting Bruce, 394 F.3d at 1223).
It followed from this analysis that the first prong of the Bruce
test requires “that the bloodline be derived from a federally
recognized tribe.” Id. at 1080; see also Ninth Cir. Model Jury
Instr. No. 8.113 (“In order for the defendant to be found to be
an Indian, the government must prove the following, beyond
a reasonable doubt: First, the defendant has descendant status
as an Indian, such as being a blood relative to a parent,
grandparent, or great-grandparent who is clearly identified as
an Indian from a federally recognized tribe . . . .”) (emphasis
18 UNITED STATES V. ZEPEDA

added); id. cmt. (“The question of Indian status operates as a
jurisdictional element under 18 U.S.C. § 1153. ‘Some blood’
evidence must be from a federally recognized tribe.”)
(citations omitted).

C.

We turn to the substance of our sufficiency of the
evidence inquiry. Bruce and its progeny make clear that
Indian status is an element of any § 1153 offense, and as
such, that it must be alleged in the indictment and proven
beyond a reasonable doubt. 394 F.3d at 1229; Maggi,
598 F.3d at 1077; Cruz, 554 F.3d at 845. We must therefore
determine whether the evidence presented at trial was
sufficient, drawing all inferences in the government’s favor,
to satisfy the threshold question identified in LaPier and
Maggi, namely, whether Zepeda’s bloodline is derived from
a federally recognized tribe. See Cruz, 554 F.3d at 843–44.

Our inquiry contains a legal component and a factual
component. The question of whether a given tribe is
federally recognized is a matter of law. The question of
whether the government has proven that a defendant’s
bloodline derives from such a tribe is a question of fact for
the jury to resolve.

1.

Federal recognition of an Indian tribe is a formal political
act that “permanently establishes a government-to-
government relationship between the United States and the
recognized tribe as a ‘domestic dependent nation.’” H.R.
Rep. 103-781, at 2 (1994) (footnote omitted). With this
understanding, we conclude that the question of whether a
 UNITED STATES V. ZEPEDA 19

tribe is federally recognized is best characterized as a
question of law.

Our prior cases provide guidance. In LaPier, having
determined that “[i]t is . . . the existence of the special
relationship between the federal government and the tribe in
question that determines whether to subject the individual
Indians affiliated with that tribe to exclusive federal
jurisdiction for crimes committed in Indian country,” we
stated that, “[t]o determine whether that special relationship
exists—whether the United States recognizes a particular
tribe—we defer ‘to the political departments.’” 986 F.2d at
305 (quoting Baker v. Carr, 369 U.S. 186, 215 (1962))
(additional citations omitted). To that end, we recognized
that the Bureau of Indian Affairs had compiled and published
a list of federally recognized tribes in the Federal Register
pursuant to 25 C.F.R. pt. 83, which we stated “appears to be
the best source to identify federally acknowledged Indian
tribes whose members or affiliates satisfy the threshold
criminal jurisdiction inquiry.” Id. Consulting this list, we
determined that LaPier was not an Indian because the tribe
with which he claimed affiliation was not among the listed
tribes. Id. at 306.

In United States v. Heath, 509 F.2d 16 (9th Cir. 1974), we
considered the effect of the Klamath Termination Act,
25 U.S.C. § 564 et seq., on the defendant’s criminal
conviction under § 1153, and found that federal criminal
jurisdiction over the defendant was lacking because the Act
terminated federal supervision over the Klamath Tribe. Id. at
19. In so holding, we explained that “[t]he Klamath
Termination Act . . . was intended to end the special
relationship that had historically existed between the Federal
Government and the Klamath Tribe. While anthropologically
20 UNITED STATES V. ZEPEDA

a Klamath Indian even after the Termination Act obviously
remains an Indian, his unique status vis-a-vis the Federal
Government no longer exists.” Id. We therefore concluded
that “18 U.S.C. § 1153 cannot serve to confer Federal
jurisdiction with respect to crimes committed by terminated
Klamath Indians.” Id. Finally, in Maggi, discussed at length
above, we found that the threshold requirement of a bloodline
from a federally recognized tribe was lacking for one
defendant because there was an “absence of evidence” that
his bloodline derived from a recognized tribe. 598 F.3d at
1080.

This precedent, considered as a whole, reflects our
recognition that there is a legal element embedded in the first
prong of the Bruce test: Federal recognition is a legal status
afforded to “American Indian groups indigenous to the
continental United States . . . that can establish a substantially
continuous tribal existence and which have functioned as
autonomous entities throughout history until the present.”
25 C.F.R. § 83.3. The Bureau of Indian Affairs, in
accordance with the governing regulations, affords the legal
designation of federal recognition to those tribes that meet its
criteria. See id. §§ 83.1–83.13 (noting procedures for
establishing that an American Indian group exists as an
Indian tribe). As we said in LaPier, “absent evidence of its
incompleteness, the BIA list appears to be the best source to
identify federally acknowledged Indian tribes whose
members or affiliates satisfy the threshold criminal
jurisdiction inquiry.” 986 F.2d at 305.11

11
We note that consulting the BIA’s list will not always end the federal
recognition inquiry. See Felix S. Cohen, Handbook of Federal Indian Law
§ 3.02[5] at 143 (2005 ed.) (“Tribes not included on the list may be able
to establish their status as federally recognized through other means,
 UNITED STATES V. ZEPEDA 21

The district court did not determine whether the tribes at
issue here are recognized by the federal government. On
appeal, the government argues that both the “Gila River
Indian Community of the Gila River Indian Reservation,
Arizona” and the “Tohono O’odham Nation of Arizona” are
federally-recognized Indian tribes. We agree. We recognize,
as a matter of law, that both tribes appear on the BIA’s list of
federally recognized tribes. See Indian Entities Recognized
and Eligible to Receive Services from the United States
Bureau of Indian Affairs, 73 Fed. Reg. 18,553 (April 4,
2008); 74 Fed. Reg. 40,218 (Aug. 11, 2009); 75 Fed. Reg.
60,810 (Oct. 1, 2010).

2.

Having made the legal determination that the “Tohono
O’odham Nation of Arizona” is a federally recognized tribe,
we must decide whether the government presented sufficient
evidence to prove that Zepeda’s blood derived from that

however.”). Congress retains the authority to recognize new tribes by
statute and to restore the status of previously terminated tribes without any
action by the BIA, a power it has exercised a number of times since 1979.
See, e.g., 25 U.S.C. §§ 566, 712a, 1300j-1, 1300b-11; see also Cohen
§ 3.02[5] at 144 & n.57; id. § 3.02[8][c], p. 168 & n.225. In addition,
Congress has declared that it alone has the authority to terminate a tribe’s
federally recognized status. See Federally Recognized Indian Tribe List
Act of 1994, Pub. L. No. 103-454, § 103(4), 108 Stat. 4791, 4791 (1994);
Cohen § 3.02[8][a] at 164. That means the BIA’s failure to include a
recognized tribe on the list, whether deliberately or through oversight,
would not strip a tribe of its federally recognized status unless Congress
had spoken through express legislative action. See Cohen § 3.02[8][a] at
164 & n.196. Even today, then, circumstances remain in which
determining a tribe’s federally recognized status might entail interpreting
the meaning and effect of congressional enactments.
22 UNITED STATES V. ZEPEDA

tribe.12 The Tribal Enrollment Certificate identifies Zepeda’s
bloodline as 1/4 Pima and 1/4 Tohono O’Odham; and
Matthew’s testimony described his ancestral bloodline as
“Pima and Tiho.” The government introduced no evidence
that any of these Indian groups are a federally recognized
tribe.

In essence then, the government asks us to fill in the
evidentiary gap in its case. There is no evidence in the record
that the “Tohono O’Odham” referenced in Zepeda’s Tribal
Enrollment Certificate refers to the federally recognized
“Tohono O’odham Nation of Arizona.” Zepeda argues
correctly that the name “Tohono O’Odham” is not on the BIA
list. Further, he vigorously argues that:

[The] appellation “Tohono O’Odham”
describes the collective Tohono O’Odham
population, a substantial portion of which has
always resided in the Sonoran Desert of
northwest Mexico. The BIA specifically lists
as federally recognized only the “Tohono
O’odham Nation of Arizona,” and not
members of the collective “Tohono
O’Odham” tribe, “wherever residing” that
Zepeda’s certificate apparently describes.

Zepeda’s Resp. to Gov’t’s Mot. to Take Judicial Notice 2–3,
ECF No. 69.

12
We note that because we are concerned only with the first prong of the
Bruce test, the status of the Gila River tribe is not actually relevant to our
decision. The government points to the Tohono O’odham Nation of
Arizona as the only federally recognized tribe from which Zepeda’s
bloodline may derive.
 UNITED STATES V. ZEPEDA 23

“Determination of who is an Indian under [18 U.S.C.
§ 1153] is not as easy as it might seem.” Maggi, 598 F.3d at
1075. Even under our deferential standard of review, we
have vacated jury convictions for insufficient evidence of a
defendant’s Indian status. See, e.g., id. at 1081, 1083
(vacating two convictions); Cruz, 554 F.3d at 851 (applying
an even more deferential standard of review).

In Maggi, the government introduced evidence showing
that defendant Mann had the following percentages of Indian
blood: “10/64 Chippewa and 11/64 ‘other Indian blood.’”
598 F.3d at 1076. Although we recognized that some
Chippewa tribes were federally recognized, e.g. the Rocky
Boy Reservation Chippewa Cree, id., we nonetheless
concluded that no rational juror could have found that the
Chippewa referenced in Mann’s certificate of enrollment
could have derived from that tribe. Nor did we think it
possible that the jury could have inferred that “other Indian
blood” could have referenced a federally recognized tribe.
Rather, we concluded that the only rational finding a juror
could make was that the Chippewa blood derived entirely
from the Little Shell Tribe of the Chippewa Cree, a non-
recognized tribe in which Mann was an enrolled member. Id.
at 1080. Thus, we concluded that “[g]iven the absence of
evidence of any blood from a federally recognized tribe,
Mann cannot meet the first prong of Bruce, and his
conviction must be vacated.” Id.

We confront an analogous situation here. We are not free
to speculate that Zepeda’s Tohono O’Odham blood is derived
from the Tohono O’odham Nation of Arizona. See United
States v. Andrews, 75 F.3d 552, 556 (9th Cir. 1996) (noting
that “[w]hile ‘[c]ircumstantial evidence can be used to prove
any fact, . . . mere suspicion or speculation’ will not provide
24 UNITED STATES V. ZEPEDA

sufficient evidence” (citation omitted)); see also United
States v. Bennett, 621 F.3d 1131, 1138–39 (9th Cir. 2010)
(finding insufficient evidence to support a conviction);
Walters v. Maass, 45 F.3d 1355, 1358–60 (9th Cir. 1995)
(same); United States v. Dinkane, 17 F.3d 1192, 1195–98 (9th
Cir. 1994) (same). Zepeda is not an enrolled member of the
Tohono O’odham Nation of Arizona and the government
submitted no evidence whatsoever to connect the appellation
“Tohono O’Odham” to the federally recognized Nation of
Arizona. We are not free to surmise that they are one in the
same, just as we were not free to speculate that some of
Mann’s Chippewa blood could have derived from the
federally recognized Rocky Boy Reservation Chippewa Cree.
Maggi, 598 F.3d at 1076, 1080; see also United States v.
Ramirez, 714 F.3d 1134, 1136, 1140 (9th Cir. 2013)
(reversing a conspiracy charge and concluding that there was
insufficient evidence to show that the defendant made an
agreement to distribute meth despite the “ample proof that the
defendant possessed and sold drugs” to his associate four
times in one month in “escalating amounts”).

Nor are we free to rely on facts outside of the record
concerning the scope of the Nation of Arizona, because this
evidence was not presented to the jury and could not have
been relied upon by it. It is horn book law that we, as an
appellate court, are limited to the record before the jury when
assessing the sufficiency of the evidence. See Jackson,
443 U.S. at 317–18 (reciting that the sufficiency of evidence
“constitutional standard must also require that the factfinder
will rationally apply that standard to the facts in evidence”
and that “the critical inquiry on review of the sufficiency of
the evidence . . . [must be] to determine whether the record
evidence could reasonably support a finding of guilt beyond
a reasonable doubt” (emphasis added)).
 UNITED STATES V. ZEPEDA 25

The jury found that Zepeda was an Indian pursuant to
§ 1153 in the absence of any proof that Zepeda’s bloodline
derived from a federally recognized tribe. Because “there is
no evidence that [Zepeda] has any blood from a federally
recognized Indian tribe,” Maggi, 598 F.3d at 1075, we
conclude that no rational juror could have found Zepeda
guilty beyond a reasonable doubt of counts 2 through 9 of the
indictment, the offenses predicated on § 1153, and his
convictions must be vacated.

IV.

In sum, we hold that the Tribal Enrollment Certificate was
insufficient to establish that Zepeda is an Indian for the
purposes of federal jurisdiction under § 1153 because the
government introduced no evidence that Zepeda’s bloodline
is derived from a federally recognized tribe. We do not
suggest, in so holding, that a Tribal Enrollment Certificate
may never be sufficient to meet the government’s burden
under the first prong of the Bruce test. Of course, future
cases may present circumstances in which the Certificate
itself reflects this information. But that is not the case here.

Because we hold that the government introduced
insufficient evidence under the first prong of the Bruce test,
we need not consider whether the Tribal Enrollment
Certificate alone was sufficient to carry the government’s
burden as to the second prong. As to that issue, we express
no opinion.

For the above reasons, Zepeda’s convictions under
§ 1153, in counts 2 through 9 of the indictment, are
REVERSED. Zepeda’s conviction for conspiracy in violation
26 UNITED STATES V. ZEPEDA

of 18 U.S.C. § 371 is unaffected by this disposition.13 See
Begay, 42 F.3d at 499 (“Section 371 is a federal criminal
statute of nationwide applicability, and therefore applies
equally to everyone everywhere within the United States,
including Indians in Indian country.”).

REVERSED in part and REMANDED for resentencing.

WATFORD, Circuit Judge, dissenting:

I agree with much of the majority’s analysis, particularly
its conclusion that whether a tribe has been recognized by the
federal government is a question of law. But I disagree with
the majority’s ultimate determination that the government
failed to present sufficient evidence from which a rational
jury could infer that Zepeda has a blood connection to a
federally recognized tribe. Under Jackson v. Virginia,
443 U.S. 307, 319 (1979), a rational jury could certainly infer
that the reference in Zepeda’s tribal enrollment certificate to
“1/4 Tohono O’Odham” is a reference to the federally
recognized Tohono O’odham Nation of Arizona.

13
Zepeda raises numerous additional issues on appeal that are relevant
to his conspiracy conviction. We addressed those issues in a separate
memorandum disposition previously filed on January 18, 2013. See
United States v. Zepeda, 506 F. App’x 536 (9th Cir. 2013).