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, Senior District Judge, Presiding

Argued and Submitted En Banc
June 18, 2014—Seattle, Washington

Filed July 7, 2015

Before: Harry Pregerson, Alex Kozinski, Barry G.
Silverman, Kim McLane Wardlaw, William A. Fletcher,
Ronald M. Gould, Richard A. Paez, Richard C. Tallman,
Consuelo M. Callahan, Sandra S. Ikuta and Morgan
Christen, Circuit Judges.

Opinion by Judge W. Fletcher;
Concurrence by Judge Kozinski;
Concurrence by Judge Ikuta
2 UNITED STATES V. ZEPEDA

SUMMARY*

Criminal Law

The en banc court affirmed a defendant’s convictions and
sentence under the Indian Major Crimes Act, which
authorizes federal jurisdiction over certain crimes committed
by Indians in Indian country.

The en banc court held in order to prove Indian status
under the IMCA, the government must prove that the
defendant (1) has some quantum of Indian blood and (2) is a
member of, or is affiliated with, a federally recognized tribe.
The court held further that under the IMCA, a defendant must
have been an Indian at the time of the charged conduct, and
that, under the second prong, a tribe’s federally recognized
status is a question of law to be determined by the trial judge.
Overruling United States v. Maggi, 598 F.3d 1073 (9th Cir.
2010), the en banc court held that the federal recognition
requirement does not extend to the first prong of the Indian
status test. The court held that the evidence at trial was
sufficient to support the finding that the defendant was an
Indian within the meaning of the IMCA at the time of his
crimes.

The en banc court held that the defendant’s sentence was
not unreasonable because it was mandated by 18 U.S.C.
§ 924(c), which required the district court to impose
consecutive mandatory minimum sentences on the

*
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

defendant’s convictions for use of a firearm during a crime of
violence.

The en banc court agreed with the three-judge panel’s
reasons for rejecting the defendant’s other arguments, and it
adopted those reasons as its own.

Concurring in the judgment, Judge Kozinski, joined by
Judge Ikuta, wrote that under the majority’s holding, the
IMCA is a criminal statute whose application, in violation of
equal protection, turns on whether a defendant is of a
particular race. Judge Kozinski wrote that he would instead
affirm the conviction either by applying the IMCA to all
members of federally recognized tribes irrespective of their
race, or by holding, consistent with Maggi, that the jury had
sufficient evidence to infer that the defendant’s ancestry was
from a federally recognized tribe.

Concurring in the judgment, Judge Ikuta, joined by Judge
Kozinski, wrote that the court should not continue to define
an Indian by the “degree of Indian blood” because this
definition disrespects tribal sovereignty and perpetuates the
“sorry history” of this method of establishing race-based
distinctions.
4 UNITED STATES V. ZEPEDA

COUNSEL

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

Robert Lally Miskell (argued), Assistant United States
Attorney, Office of the United States Attorney, Tucson,
Arizona; Joan G. Ruffennach, Assistant United States
Attorney, Mark S. Kokanovich and Randall M. Howe,
Deputy Appellate Chiefs, and Ann Birmingham Scheel,
Acting United States Attorney, Phoenix, Arizona, for
Plaintiff-Appellee.

Paul Whitfield Hughes (argued), Charles Rothfeld, Michael
Kimberly and Breanne Gilpatrick, Mayer Brown LLP,
Washington, D.C.; David Porter, Sacramento, California, for
Amici Curiae National Association of Criminal Defense
Lawyers and Ninth Circuit Federal Public and Community
Defenders.
 UNITED STATES V. ZEPEDA 5

OPINION

W. FLETCHER, Circuit Judge:

Damien Zepeda appeals from his convictions and
sentence on one count of conspiracy to commit assault with
a dangerous weapon and to commit assault resulting in
serious bodily injury; one count of assault resulting in serious
bodily injury; three counts of assault with a dangerous
weapon; and four counts of use of a firearm during a crime of
violence. We affirm.

The crimes took place on the Ak-Chin Indian Reservation
in Arizona. The government charged Zepeda under the
Indian Major Crimes Act (“IMCA”), 18 U.S.C. § 1153, which
authorizes federal jurisdiction over certain crimes committed
by Indians in Indian country. To sustain a prosecution under
the IMCA, the government must establish that the defendant
is an Indian within the meaning of that statute. Zepeda
argues, among other things, that the evidence at trial was
insufficient to support the jury’s finding that he was an Indian
under the IMCA.

In United States v. Bruce, 394 F.3d 1215, 1223 (9th Cir.
2005), we laid out a two-part test for establishing a person’s
status as an Indian under the IMCA: the defendant must
(1) have Indian blood and (2) be recognized by a tribe or the
federal government as an Indian. In United States v. Maggi,
598 F.3d 1073, 1080–81 (9th Cir. 2010), decided after
Zepeda’s trial had finished, we added a gloss to both prongs
of the Bruce test, holding that the government must prove that
(1) the defendant has a quantum of Indian blood traceable to
a federally recognized tribe and (2) the defendant is a
member of, or is affiliated with, a federally recognized tribe.
6 UNITED STATES V. ZEPEDA

In the case now before us, a three-judge panel held that the
government had not presented sufficient evidence to satisfy
the first prong of the Bruce test as modified by Maggi. For
the reasons we explain below, we overrule Maggi. While
Maggi appropriately clarified the second prong of the Bruce
test to require a relationship with a federally recognized tribe,
Maggi erred in extending the federal recognition requirement
to the first prong. We now hold that under the first prong of
the Bruce test the government need only prove that the
defendant has some quantum of Indian blood, whether or not
traceable to a federally recognized tribe. We thus hold that in
order to prove Indian status under the IMCA, the government
must prove that the defendant (1) has some quantum of Indian
blood and (2) is a member of, or is affiliated with, a federally
recognized tribe. We hold further that under the IMCA, a
defendant must have been an Indian at the time of the charged
conduct, and that, under the second Bruce prong, a tribe’s
federally recognized status is a question of law to be
determined by the trial judge.

We hold that the evidence at trial was sufficient to support
the finding that Zepeda was an Indian within the meaning of
the IMCA at the time of his crimes. We reject Zepeda’s other
challenges to his convictions and sentence.

I. Background

We recount the evidence in the light most favorable to the
jury’s verdict. See United States v. Hicks, 217 F.3d 1038,
1041 (9th Cir. 2000). On October 25, 2008, Zepeda and his
brother Matthew were drinking beer and malt liquor at
Zepeda’s mother’s house in Maricopa, Arizona. Zepeda
asked Matthew if he wanted to go to a party, and Matthew
agreed. Zepeda then called another of his brothers, Jeremy,
 UNITED STATES V. ZEPEDA 7

and asked if he wanted to go to the party. Jeremy also
agreed.

An unidentified driver picked up Zepeda, Matthew, and
Jeremy. Zepeda told the driver to take them to a house
located on the Ak-Chin Reservation. The house belonged to
Dallas Peters and his wife, Jennifer Davis. Zepeda wanted to
see his ex-girlfriend, Stephanie Aviles, who was at Peters’s
house with her sixteen-year-old cousin, “C”.

In the car, Zepeda and his brothers drank beer and
smoked marijuana. Matthew and Jeremy still thought they
were going to a party. The driver dropped them off near
Peters’s house. Matthew testified at trial that Zepeda told
Jeremy to “grab something from the seat.” Jeremy “wasn’t
paying attention,” so Matthew reached under the car seat and
pulled out a shotgun. Jeremy testified that Zepeda got out of
the car holding a handgun and a shotgun, and that Zepeda
tried to give the shotgun to Jeremy. When Jeremy refused,
Zepeda gave the shotgun to Matthew. Zepeda told Matthew
to fire the shotgun if he heard shots.

Matthew and Jeremy walked to the west side of Peters’s
house, and Zepeda approached the front door. Jeremy
testified that he saw Zepeda carrying a handgun. At this
point, Jeremy testified, he realized they were not at a party.
Jeremy walked away toward the main road because he did not
want to “get involved with something that . . . [was] going to
jeopardize me and my family.” Matthew stayed by the side
of the house with the shotgun.

Zepeda knocked on the front door, and Peters answered.
Zepeda asked to talk to Aviles, who came outside and walked
with Zepeda to the northeast corner of the house. Zepeda
8 UNITED STATES V. ZEPEDA

asked Aviles to leave with him. When she refused, he
grabbed her arms. She tried to push him away and felt what
she thought was a gun in his pocket. From inside the house,
C heard Zepeda and Aviles “getting louder,” and she went
outside to check on Aviles. Aviles turned around to return to
the house, and Zepeda hit her in the head multiple times with
something hard. Aviles fell face-down on the ground.

Zepeda pulled out a handgun and pointed it at C. She ran
away down the east side of the house. She heard gunshots.
Peters, who was urinating off his back porch at the time,
heard the gunshots and walked to the southeast corner of the
house. He saw C running toward him. He “grabbed her,
pulled her in, like [to] shield her.” While holding C, Peters
was shot in the shoulder. He testified, “I didn’t feel the
round, but I seen blood come out so I knew I had to be shot.”
C testified that she saw Zepeda shooting from about forty feet
away. “[T]he shooting kept going and going,” she testified.
“I had blood all on my back and I thought I got shot and
Dallas said, ‘You’re okay. Just—I got shot. Just run. Please
just run.’” She ran to the back door of the house and went
inside.

At about the time Zepeda started shooting, Matthew fired
the shotgun toward the backyard. Matthew then walked into
the backyard and fired the shotgun in Peters’s direction.
Matthew testified that he did not see Peters when he fired the
shotgun. Peters tried to run toward the front of the house, but
he “hear[d] shots going past [his] ears from that way.” He
saw Matthew “fiddling [with the gun] with it pointed down.”
Peters ran toward Matthew and tried, unsuccessfully, to
disarm him.
 UNITED STATES V. ZEPEDA 9

Peters returned to the southeast corner of the house, where
he saw Zepeda. Zepeda had lowered his gun, either because
it had jammed or because he was reloading. Peters
“rush[ed]” at Zepeda and “grabbed the gun.” Peters pulled
the trigger around twelve times to “get rid of the bullets.”
After the gun was empty, Peters let go. Zepeda ran to the
west side of the house. He caught up with Matthew and
Jeremy, and the three men fled.

After the shooting started, Aviles stood up and ran into
the house. According to C,

[Aviles] was crying and she asked what
happened and where Dallas was and if
everybody was in the house and if we were all
okay. And we ran to the hallway where
Jennifer was, Dallas’s wife, and she was
crying. And the whole time we were in there
we could hear gunshots.

We stood in the hallway for probably
around ten minutes until the doorbell kept
ringing . . . and Jennifer finally went and
opened the door and Dallas came inside and
collapsed on the floor and he was covered in
blood.

Peters was severely injured in the shooting. He had
numerous gunshot wounds, including life-threatening wounds
to his wrist and upper thigh. He had many small buckshot
wounds in his torso. He spent more than a month in the
hospital and underwent more than eight surgeries.
10 UNITED STATES V. ZEPEDA

The government charged Zepeda, Matthew, and Jeremy
in connection with the shooting. Matthew pled guilty to
assault resulting in serious bodily injury and to use of a
firearm during a crime of violence. Jeremy pled guilty to
misprision of a felony. The government charged Zepeda with
nine counts: (1) one count of conspiracy to commit assault
with a dangerous weapon and to commit assault resulting in
serious bodily injury, in violation of 18 U.S.C. §§ 1153, 371,
and 2; (2) one count of assault resulting in serious bodily
injury against Peters, in violation of 18 U.S.C. §§ 1153,
113(a)(6), and 2; (3) three counts of assault with a dangerous
weapon against Peters, Aviles, and C, in violation of
18 U.S.C. §§ 1153, 113(a)(6), and 2; and (4) four counts of
use of a firearm during a crime of violence against Peters,
Aviles, and C, in violation of 18 U.S.C. §§ 924(c)(1)(A) and
2. Zepeda went to trial on all nine counts.

To prove that Zepeda was an Indian within the meaning
of the IMCA, the government introduced into evidence a
document titled “Gila River Enrollment/Census Office
Certified Degree of Indian Blood” (“Enrollment Certificate”).
Detective Sylvia Soliz, a detective for the Ak-Chin Police
Department, testified that an Enrollment Certificate is “a
piece of paper confirming through the tribe that . . . this
person is an enrolled member of their tribe and . . . meet[s]
the blood quantum.” She testified that enrollment certificates
may be used to determine whether a person is eligible to
receive benefits, such as housing and medical care, from the
tribe. The government and Zepeda’s attorney stipulated that
the Enrollment Certificate “may be presented at trial without
objection,” and that its “contents are stipulated to as fact.”

Zepeda’s Enrollment Certificate stated that Zepeda was
“an enrolled member of the Gila River Indian Community.”
 UNITED STATES V. ZEPEDA 11

It listed Zepeda’s “blood degree” as one-fourth Pima and one-
fourth Tohono O’Odham, for a total of one-half Indian blood.
Matthew also testified about Zepeda’s Indian status. He
testified that Zepeda is half Indian, with blood from the
“Pima and Tiho” tribes. (Matthew may have said “T.O.,” for
Tohono O’Odham, which was then transcribed as “Tiho.”)
Matthew testified that Zepeda also is “at least half Native
American.” He testified that his own Indian heritage comes
from his father, and that he and Zepeda have the same father
and mother.

At the close of the government’s case-in-chief, Zepeda
moved for a judgment of acquittal because of insufficient
evidence. The district court denied the motion. Zepeda
renewed his motion at the close of evidence, and the district
court again denied it. The court instructed the jury that, in
order to convict, it needed to find that Zepeda was an Indian.
The court did not instruct the jury how to make that finding.
Neither the government nor Zepeda’s lawyer objected to this
instruction or requested that the court provide the jury with
more information about making the finding of Indian status.

The jury convicted Zepeda on all counts. The district
court sentenced Zepeda to a prison term of ninety years and
three months. Zepeda appealed, challenging his convictions
and sentence on a number of separate grounds. A three-judge
panel of this court affirmed Zepeda’s conviction for
conspiracy and reversed his convictions on the other eight
counts. United States v. Zepeda, 738 F.3d 201, 214 (9th Cir.
2013); United States v. Zepeda, 506 F. App’x 536, 537–38
(9th Cir. 2013). The panel held that the government
introduced insufficient evidence to support the jury’s finding
that Zepeda was an Indian. Zepeda, 738 F.3d at 213. It
rejected all of Zepeda’s other arguments challenging his
12 UNITED STATES V. ZEPEDA

convictions. Id. at 208; Zepeda, 506 F. App’x at 538–39. It
did not reach Zepeda’s argument that his sentence was
unreasonable.

We granted rehearing en banc. United States v. Zepeda,
742 F.3d 910 (9th Cir. 2014).

II. Discussion

In this opinion, we address only Zepeda’s arguments
(1) that the government’s evidence was insufficient to support
a jury finding that he was an Indian within the meaning of the
IMCA, and (2) that his sentence was unreasonable. We agree
with the three-judge panel’s reasons for rejecting Zepeda’s
other arguments, and we adopt them as our own. See Zepeda,
738 F.3d at 207–08; Zepeda, 506 F. App’x at 538–39.

A. Sufficiency of the Evidence to Prove Indian Status

1. Indian Status Under the IMCA

The IMCA is one of several statutes addressing “[t]he
exercise of criminal jurisdiction over Indians and Indian
country.” Bruce, 394 F.3d at 1218. In its current form, the
IMCA authorizes federal criminal jurisdiction over

[a]ny Indian who commits against the person
or property of another Indian or other person
any of the following offenses, namely,
murder, manslaughter, kidnapping, maiming,
a felony under chapter 109A, incest, a felony
assault under section 113, an assault against
an individual who has not attained the age of
16 years, felony child abuse or neglect, arson,
 UNITED STATES V. ZEPEDA 13

burglary, robbery, and a felony under section
661 of this title within the Indian country.

18 U.S.C. § 1153(a). Under the IMCA, “the defendant’s
Indian status is an essential element . . . which the
government must allege in the indictment and prove beyond
a reasonable doubt.” Bruce, 394 F.3d at 1229.

As we noted in Bruce, the IMCA does not define
“Indian,” but “courts have ‘judicially explicated’ its
meaning.” Id. at 1223 (quoting United States v. Broncheau,
597 F.2d 1260, 1263 (9th Cir. 1979)). We wrote that “[t]he
generally accepted test for Indian status” under the IMCA
considers ‘“(1) the degree of Indian blood; and (2) tribal or
government recognition as an Indian.”’ Id. (quoting United
States v. Keys, 103 F.3d 758, 761 (9th Cir. 1996)); see
William C. Canby, Jr., American Indian Law in a Nutshell
9–10 (5th ed. 2009); see also United States v. Cruz, 554 F.3d
840, 845–46 (9th Cir. 2009) (quoting the Bruce test). We
understand Bruce’s second prong, “tribal or government
recognition as an Indian,” to require “membership or
affiliation in any federally acknowledged Indian tribe.”
LaPier v. McCormick, 986 F.2d 303, 306 (9th Cir. 1993).

The two-prong Bruce test requires that, in addition to
affiliation with a federally recognized tribe, as specified in
the second prong, a defendant subject to the IMCA must also
have some quantum of Indian blood, as specified in the first
prong. That is, the defendant must have a blood connection
to a “once-sovereign political communit[y].” United States
v. Antelope, 430 U.S. 641, 646 (1977). “The first prong
requires ancestry living in America before the Europeans
arrived.” Bruce, 394 F.3d at 1223. Affiliation with a
federally recognized tribe is relevant only to Bruce’s second
14 UNITED STATES V. ZEPEDA

prong. The federally recognized tribe with which a defendant
is currently affiliated need not be, and sometimes is not, the
same as the tribe or tribes from which his bloodline derives.
Indeed, in this very case, Zepeda’s Enrollment Certificate
states that he is a member of the Gila River Indian
Community, but it lists his blood as deriving from the Pima
and Tohono O’Odham tribes.

Five years after Bruce, and after trial in this case, we
added a gloss to the Bruce test, based on a broad application
of the premise that Indian status requires “a sufficient
connection to an Indian tribe that is recognized by the federal
government.” Maggi, 598 F.3d at 1078. We held in Maggi
that the tribal federal-recognition requirement applies in both
prongs of the Bruce test. Id. at 1080–81. Accordingly, we
held that the first Bruce prong requires that the defendant’s
“bloodline be derived from a federally recognized tribe,” id.
at 1080, and that the second prong requires “membership or
affiliation with a federally recognized tribe,” id. at 1081
(internal quotation marks omitted). Zepeda argues under
Maggi that the government’s evidence under the first prong
was insufficient to prove that his bloodline derives from a
federally recognized tribe.

Under Bruce, the governing law at the time of Zepeda’s
trial, there was no requirement that an Indian defendant’s
blood be traceable to a federally recognized tribe. Relying on
Bruce, and not anticipating the yet-undecided Maggi, the
government did not present evidence that Zepeda’s Indian
blood derived from a member of a federally recognized tribe.
However, its undisputed evidence showed conclusively that
Zepeda had some quantum of Indian blood. We need not
reach the question whether Zepeda is right that the
government did not introduce sufficient evidence to satisfy
 UNITED STATES V. ZEPEDA 15

the definition of “Indian” under Maggi, for we are convinced
that Maggi was wrongly decided.

Maggi drew its federal-recognition requirement from our
decision in LaPier v. McCormick. The defendant in LaPier
was convicted in state court for crimes that occurred within
the Blackfeet Indian Reservation. 986 F.2d at 304. He filed
a petition for habeas corpus, arguing that he was an Indian
and thus should have been tried in federal court under the
IMCA. Id. We rejected his argument, but we did not address
whether he had “shown a significant degree of blood and
sufficient connection to his tribe.” Id. Instead, we held that
he lost under “a simpler threshold question,” whether “the
Indian group with which [he] claim[ed] affiliation [was] a
federally acknowledged Indian tribe.” Id. at 304–05.
Because the tribe in which he was enrolled was not federally
recognized, we held that he was not an Indian under the
IMCA. Id. at 306.

Maggi read LaPier to require federal recognition under
both prongs of the Bruce test. But LaPier required federal
recognition only under Bruce’s second prong. The
“dispositive” question in LaPier was whether “the Indian
group with which LaPier claims affiliation [is] a federally
acknowledged Indian tribe.” Id. at 304–05 (emphasis added).
We wrote that 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 305 (emphasis added). LaPier’s
discussion of federal recognition thus focused exclusively on
the particular tribe with which the defendant was currently
affiliated. See id. at 304–05.
16 UNITED STATES V. ZEPEDA

Zepeda contends that Maggi was correctly decided. He
argues, based on United States v. Antelope, 430 U.S. 641
(1977), that if the first prong of the Bruce test requires only
a quantum of Indian blood, without any connection under this
prong to a federally recognized tribe, jurisdiction under the
IMCA will depend upon a racial rather than a political
classification. We disagree. We see nothing inconsistent
between the Court’s holding in Antelope and our holding here
that the first prong of the Bruce test does not require that the
quantum of blood be derived from a member of a federally
recognized tribe. We do not concede that a requirement of
Indian blood standing alone is necessarily a racial rather than
a political classification. See, e.g., 25 U.S.C. § 479 (defining
the term “Indian” in the Indian Reorganization Act to include
“all persons of Indian descent who are members of any
recognized Indian tribe now under Federal jurisdiction, and
all persons who are descendants of such members who were,
on June 1, 1934, residing within the present boundaries of any
Indian reservation,” and “further includ[ing] all other
persons of one-half or more Indian blood”) (emphasis
added)); id. § 1679(a)(2) (defining “eligible” “Indians” to
include members of non-federally recognized tribes so long
as the person can demonstrate descent from an Indian resident
in California as of 1852); id. § 500n (defining “natives of
Alaska” as “native Indians, Eskimos, and Aleuts of whole or
part blood inhabiting Alaska at the time of the Treaty of
Cession of Alaska to the United States and their descendants
of whole or part blood”); 25 C.F.R. § 83.7(e) (to be eligible
for federal acknowledgment, a tribe must demonstrate, among
other things, that its membership “consists of individuals who
descend from a historical Indian tribe”). But even if it were,
the second prong of the Bruce test, as understood in Maggi
and as we understand it now, is enough to ensure that Indian
status is not a racial classification, for the second prong
 UNITED STATES V. ZEPEDA 17

requires, as a condition for the exercise of federal jurisdiction,
that the defendant be a member of or be affiliated with a
federally recognized tribe. See Bruce, 394 F.3d at 1224
(noting that the second prong requires a “non-racial link” to
a tribe); LaPier, 986 F.2d at 305.

In Antelope, the Indian defendants had been convicted of
first-degree felony murder under the IMCA. 430 U.S. at
642–43. If they had been tried under Idaho law, the
prosecution would have had to prove additional elements of
premeditation and deliberation, because Idaho law lacked an
applicable felony-murder provision. Id. at 643–44. The
Ninth Circuit held that the disadvantage imposed on
defendants under the IMCA violated equal protection because
“the sole basis for the disparate treatment of appellants and
non-Indians is that of race.” United States v. Antelope,
523 F.2d 400, 403 (9th Cir. 1975) (emphasis in original). The
Supreme Court reversed. It held that the IMCA was “not
based upon impermissible [racial] classifications.” Antelope,
430 U.S. at 646. “Federal regulation of Indian tribes,” the
Court wrote, “is governance of once-sovereign political
communities; it is not to be viewed as legislation of a ‘racial
group consisting of Indians.’” Id. (quoting Morton v.
Mancari, 417 U.S. 535, 553 n.24 (1974) (some internal
quotation marks omitted)).

Neither the Ninth Circuit nor the Supreme Court in
Antelope defined “Indian” under the IMCA. However, we
know from the Court’s analysis that the definition required at
least an affiliation with a federally recognized tribe. Id. at
646 (“[R]espondents were not subjected to federal criminal
jurisdiction because they are of the Indian race but because
they are enrolled members of the Coeur d’Alene Tribe.”).
Neither the Ninth Circuit nor the Court specified whether the
18 UNITED STATES V. ZEPEDA

definition required, in addition, a quantum of Indian blood.
We may infer, however, that such an additional requirement
would not have made any difference to the Court’s analysis,
for the Court premised its analysis on Mancari, in which the
definition of Indian specifically included a requirement of a
quantum of Indian blood.

In Mancari, decided just three years before Antelope, non-
Indian employees of the Bureau of Indian Affairs (“BIA”)
challenged the employment preference given to Indians under
the so-called Indian Preference Statutes. 417 U.S. at 537.
The term “Indian” is defined variously in federal and state
statutes. Many federal definitions include a requirement of
some “quantum” of Indian blood. See Paul Spruhan, A Legal
History of Blood Quantum in Federal Indian Law to 1935,
51 S.D. L. Rev. 1 (2006); Margo S. Brownell, Note, Who Is
an Indian? Searching for an Answer to the Question at the
Core of Federal Indian Law, 34 U. Mich. J.L. Reform 275
(2000–2001). The definition of “Indian,” for purposes of the
Indian employment preference at issue in Mancari, specified
that “an individual must be one-fourth or more degree Indian
blood and be a member of a Federally-recognized tribe.”
417 U.S. at 553 n.24. The Court upheld the Indian
employment preference, with “Indian” so defined, writing:

Literally every piece of legislation dealing
with Indian tribes and reservations, and
certainly all legislation dealing with the BIA,
single out for special treatment a constituency
of tribal Indians living on or near reservations.
If these laws, derived from historical
relationships and explicitly designed to help
only Indians, were deemed invidious racial
discrimination, an entire Title of the United
 UNITED STATES V. ZEPEDA 19

States Code (25 U.S.C.) would be effectively
erased and the solemn commitment of the
Government toward the Indians would be
jeopardized.

Id. at 552; see Antelope, 430 U.S. at 645 (quoting most of this
passage); see also Sarah Krakoff, Inextricably Political:
Race, Membership, and Tribal Sovereignty, 87 Wash. L. Rev.
1041 (2012); Spruhan, supra.

It might be objected that the rationale of Mancari does not
apply to the IMCA, given that Mancari deals with
disproportionate benefits provided to Indians while the
IMCA, at least in some of its applications, deals with
disproportionate burdens imposed on Indians. But the Court
in Antelope specifically responded to this objection. It wrote:

Both Mancari and Fisher [v. District
Court, 424 U.S. 382 (1976),] involved
preferences or disabilities directly promoting
Indian interests in self-government, whereas
in the present case we are dealing, not with
matters of tribal self-regulation, but with
federal regulation of criminal conduct within
Indian country implicating Indian interests.
But the principles reaffirmed in Mancari and
Fisher point more broadly to the conclusion
that federal 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.

430 U.S. at 646.
20 UNITED STATES V. ZEPEDA

The gloss added by Maggi to the first prong of Bruce
would impose an unnecessary and burdensome requirement.
Under Maggi, the government would have to prove that an
ancestor of the defendant—not merely the defendant himself
or herself—was a member of a federally recognized tribe.
Such proof is unnecessary, given that the political status
necessary to insulate a prosecution under the IMCA from an
equal protection challenge is established, under any
conception of Indian political status, under the second prong
of Bruce. Further, such proof may be difficult or even
impossible to obtain, even if it is undisputed that the
defendant has Indian blood. In some cases, evidence about
the defendant’s Indian ancestors and their tribal affiliation
may be difficult to find or, if found, ambiguous. In other
cases, the evidence may be easily available and clear, but
show that the Indian ancestors were not members of a
federally recognized tribe.

We therefore overrule Maggi and restore the basic
structure of Bruce, though not its precise articulation, as the
“generally accepted test for Indian status” under the IMCA.
Bruce, 394 F.3d at 1223. In doing so, we recognize that
Maggi was right to restate the second prong of the Bruce test
and to make clear that the defendant must have a current
relationship with a federally recognized tribe. We hold that
proof of Indian status under the IMCA requires only two
things: (1) proof of some quantum of Indian blood, whether
or not that blood derives from a member of a federally
recognized tribe, and (2) proof of membership in, or
affiliation with, a federally recognized tribe.

In a prosecution under the IMCA, the government must
prove that the defendant was an Indian at the time of the
offense with which the defendant is charged. If the relevant
 UNITED STATES V. ZEPEDA 21

time for determining Indian status were earlier or later, a
defendant could not “predict with certainty” the consequences
of his crime at the time he commits it. Apprendi v. New
Jersey, 530 U.S. 466, 478 (2000). Moreover, the government
could never be sure that its jurisdiction, although proper at the
time of the crime, would not later vanish because an astute
defendant managed to disassociate himself from his tribe.
This would, for both the defendant and the government,
undermine the “notice function” we expect criminal laws to
serve. United States v. Francisco, 536 F.2d 1293, 1296 (9th
Cir. 1976).

Zepeda and the government agree that the government has
the burden of proving to a jury that the defendant was a
member of, or affiliated with, a federally recognized tribe at
the time of the offense. However, they dispute whether the
judge or the jury should determine whether the tribe in
question is federally recognized. Federal recognition “is a
formal political act confirming the tribe’s existence as a
distinct political society, and institutionalizing the
government-to-government relationship between the tribe and
the federal government.” Felix Cohen, Cohen’s Handbook of
Federal Indian Law § 3.02[3], at 134–35 (Nell Jessup
Newton ed., 2012); see 25 C.F.R. § 83.2. The BIA has the
authority to determine which tribes satisfy the criteria for
federal recognition. Zepeda, 738 F.3d at 211. It maintains
and publishes annually a list of federally recognized tribes.
See, e.g., Indian Entities Recognized and Eligible to Receive
Services from the United States Bureau of Indian Affairs
(“BIA List”), 75 Fed. Reg. 60,810-01 (Oct. 1, 2010). “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.” LaPier, 986 F.2d at 305. We
22 UNITED STATES V. ZEPEDA

previously have treated federal recognition of Indian tribes as
a question of law. In LaPier, we held as a matter of law that
the defendant’s tribe was not federally recognized because it
did not appear on the BIA List. Id. at 306. Similarly, in
United States v. Heath, 509 F.2d 16, 19 (9th Cir. 1974), we
held as a matter of law that the defendant’s tribe was not
federally recognized because the federal government had
terminated the tribe’s recognized status. Consistent with
these cases, we hold that federal recognition of a tribe, a
political decision made solely by the federal government and
expressed in authoritative administrative documents, is a
question of law to be decided by the judge.

In seeking to prove federal recognition of a defendant’s
tribe, the government should present to the judge evidence
that the tribe was recognized at the time of the offense. In
most cases, the judge will be able to determine federal
recognition by consulting the relevant BIA List. If necessary
to decide whether the BIA List omits a federally recognized
tribe or includes an unrecognized tribe, the court may consult
other evidence that is judicially noticeable or otherwise
appropriate for consideration.

On the first Bruce prong, the court should instruct the jury
that it has to find beyond a reasonable doubt that the
defendant has some quantum of Indian blood. On the second
prong, the court should instruct the jury that it has to find
beyond a reasonable doubt that the defendant was a member
of, or affiliated with, a federally recognized tribe at the time
of the offense. We described in our opinion in Bruce the
criteria for such recognition. Bruce, 394 F.3d at 1224; see
also Cruz, 554 F.3d at 846. We restate them here,
emphasizing that each of these criteria requires a link to a
federally recognized tribe. The criteria are, in declining order
 UNITED STATES V. ZEPEDA 23

of importance: (1) enrollment in a federally recognized tribe;
(2) government recognition formally and informally through
receipt of assistance available only to individuals who are
members, or are eligible to become members, of federally
recognized tribes; (3) enjoyment of the benefits of affiliation
with a federally recognized tribe; (4) social recognition as
someone affiliated with a federally recognized tribe through
residence on a reservation and participation in the social life
of a federally recognized tribe. If the court has found that the
tribe of which the government claims the defendant is a
member, or with which the defendant is affiliated, is federally
recognized, it should inform the jury that the tribe is federally
recognized as a matter of law.

Here, the trial court erred by instructing the jury to find
whether Zepeda was an Indian without telling it how to make
that finding. Zepeda did not object to the instruction, so we
review for plain error. United States v. Williams, 990 F.2d
507, 511 (9th Cir. 1993). “Plain error is ‘(1) error, (2) that is
plain, and (3) that affects substantial rights.’” United States
v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en banc)
(quoting United States v. Cotton, 535 U.S. 625, 631 (2002)).
The erroneous jury instruction did not affect Zepeda’s
substantial rights because, as we discuss below, there was
clear and undisputed evidence that Zepeda both had Indian
blood and was an enrolled member of a federally recognized
tribe. See United States v. Teague, 722 F.3d 1187, 1192 (9th
Cir. 2013) (noting that “failure to instruct on a necessary
offense element” does not affect substantial rights where
“there is [no] reasonable probability the jury’s verdict would
have been different had the jury been properly instructed”
(internal quotation marks omitted)).
24 UNITED STATES V. ZEPEDA

2. Sufficiency of the Evidence Against Zepeda

Zepeda argues the government failed to present sufficient
evidence at trial to prove that he was an Indian. If Zepeda is
right, we must reverse eight of his nine convictions. The
government charged Zepeda with assault with a dangerous
weapon and assault resulting in serious bodily harm under the
IMCA. See 18 U.S.C. § 1153 (covering “felony assault[s]
under section 113”); 18 U.S.C. §§ 113(3), (6). Conspiracy
and use of a firearm during a crime of violence are “federal
law[s] of general, non-territorial applicability,” which do not
require the government to satisfy the IMCA’s elements.
United States v. Errol D., Jr., 292 F.3d 1159, 1165 (9th Cir.
2002) (quoting United States v. Young, 936 F.2d 1050, 1055
(9th Cir. 1991)). However, to prove that Zepeda used a
firearm during a crime of violence, the government first had
to prove that Zepeda committed the predicate assaults, United
States v. Streit, 962 F.2d 894, 899 (9th Cir. 1992), which
were charged under the IMCA. Therefore, conspiracy was
the only count for which the government did not have to
prove Zepeda’s Indian status.

The first prong of the Bruce test requires only that the
defendant have “some” quantum of Indian blood. Therefore,
“evidence of a parent, grandparent, or great-grandparent who
is clearly identified as an Indian is generally sufficient to
satisfy this prong.” Bruce, 394 F.3d at 1223. The Enrollment
Certificate stated that Zepeda had one-half Indian blood, with
blood from the Pima and Tohono O’Odham tribes. Matthew,
Zepeda’s brother, testified that their father was an Indian.
This evidence was undisputed and clearly satisfied the first
Bruce prong. See id. at 1223–24. As we held above, it is
irrelevant whether the tribes from which Zepeda’s bloodline
derives are federally recognized.
 UNITED STATES V. ZEPEDA 25

Zepeda’s Enrollment Certificate established that he was
an enrolled member of the Gila River Indian Community.
The Gila River Indian Community was, as a matter of law, a
federally recognized tribe at the time of the charged offenses.
See BIA List, 74 Fed. Reg. 40,218-02, 40,220 (Aug. 11,
2009); BIA List, 73 Fed. Reg. 18,553-01, 18,554 (Apr. 4,
2008). Zepeda stipulated to the admission of the Enrollment
Certificate and did not challenge its attestation that he was a
member of the Gila River Indian Community.

We therefore hold that the Enrollment Certificate and
Matthew’s testimony were sufficient to establish that Zepeda
was an Indian at the time of the charged offenses.

B. Zepeda’s Sentence

Zepeda argues that his sentence—a prison term of ninety
years and three months—was unreasonable because the
district court improperly treated the Sentencing Guidelines as
mandatory. Zepeda’s sentence is indeed long, but his
argument is based on a misunderstanding of the law
governing his sentence.

Under 18 U.S.C. § 924(c), the district court was required
to impose consecutive mandatory minimum sentences on
Zepeda’s convictions for use of a firearm during a crime of
violence. Each of Zepeda’s convictions under § 924(c) was
tied to a different predicate offense: one count of assault
resulting in serious bodily injury against Peters and three
counts of assault with a dangerous weapon against Peters,
Aviles, and C. The jury found that Zepeda discharged his
firearm in committing each offense. Therefore, Zepeda’s first
conviction under § 924(c) carried a statutory mandatory
minimum sentence of ten years, 18 U.S.C. § 924(c)(1)(A)(iii),
26 UNITED STATES V. ZEPEDA

and the other three convictions each carried statutory
mandatory minimum sentences of twenty-five years, id.
§ 924(c)(1)(C)(i); see United States v. Beltran-Moreno,
556 F.3d 913, 915 (9th Cir. 2009). Each mandatory
minimum sentence had to be imposed consecutively.
18 U.S.C. § 924(c)(1)(D)(ii); Beltran-Moreno, 556 F.3d at
915. Therefore, Zepeda’s sentence is the only sentence the
district court could impose. See United States v. Harris, 154
F.3d 1082, 1085 (9th Cir. 1998). Its length was determined
not by the judge but, in effect, by the United States
Attorney’s charging decision. Zepeda’s other arguments
challenging his sentence were not properly raised before this
court. See Sandgathe v. Maass, 314 F.3d 371, 380 & n.8 (9th
Cir. 2002); 9th Cir. R. 28-1(b).

Conclusion

We overrule Maggi and hold that the government’s
evidence was sufficient under the Bruce test, as
recharacterized in this opinion, to prove that Zepeda was an
Indian at the time of his crimes. We reject Zepeda’s other
arguments and affirm his convictions and sentence in full.

AFFIRMED.
 UNITED STATES V. ZEPEDA 27

KOZINSKI, Circuit Judge, with whom Circuit Judge IKUTA
joins, concurring in the judgment:

The majority’s holding transforms the Indian Major
Crimes Act into a creature previously unheard of in federal
law: a criminal statute whose application turns on whether a
defendant is of a particular 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. It’s
the most basic tenet of equal protection law that a statute
which treats two identically situated individuals differently
based solely on an unadorned racial characteristic must be
subject to strict scrutiny. The racial test articulated in United
States v. Bruce, 394 F.3d 1215 (9th Cir. 2005), amounts to an
unwarranted and impermissible “Indian exception” to that
bedrock principle.

United States v. Maggi at least tethered Bruce’s racial
component to a political relationship. 598 F.3d 1073,
1080–81 (9th Cir. 2010). By overruling Maggi, the majority
leaves the IMCA—and a host of other federal statutes
governing tribes—shorn of even a colorable non-racial
underpinning. I would instead affirm Zepeda’s conviction
either by applying the IMCA to all members of federally
recognized tribes irrespective of their race, or by holding,
consistent with Maggi, that the jury had sufficient evidence
to infer Zepeda’s ancestry was from a federally recognized
tribe. I concur in the judgment only.

1. The majority holds “that proof of Indian status . . .
requires only two things: (1) proof of some quantum of Indian
blood, whether or not that blood derives from a member of a
federally recognized tribe, and (2) proof of membership in, or
28 UNITED STATES V. ZEPEDA

affiliation with, a federally recognized tribe.” Maj. Op. at 20.
The first prong of that test is an overt racial classification.
The majority is unconcerned by this because, in its view,
“[t]he second prong of the Bruce test . . . is enough to ensure
that Indian status is not a racial classification, for the second
prong requires, as a condition for the exercise of federal
jurisdiction, that the defendant be a member of or be affiliated
with a federally recognized tribe.” Maj. Op. at 16–17.

But the presence of a separate and independent “non-
racial prong” cannot save a test that otherwise turns on race.
Bruce’s political affiliation prong may provide a non-racial
basis for limiting the IMCA only to tribe members. But not
all tribe members are subject to the IMCA. Separating those
who are from those who are not is the function of Bruce’s
first requirement, and that requirement turns entirely on race.
That ineluctably treats identically situated individuals within
a tribe differently from one another solely based on their
immutable racial characteristics.

To claim that the Bruce test is “not a racial classification”
because there’s a non-racial “condition for the exercise of
federal jurisdiction” conflates Congress’s Article I power to
enact a law with the affirmative restrictions imposed by the
Fifth Amendment. The fact that the “defendant [is] a member
of or [] affiliated with a federally recognized tribe” explains
why Congress is able to criminalize a tribe member’s
conduct, even absent a nexus to interstate activity. But the
fact that Congress is permitted to create laws regulating tribe
members doesn’t mean that Congress can administer those
laws in a discriminatory fashion. That would be like saying
a federal law extending criminal penalties only to those with
“African blood” isn’t a racial classification because it can
only be applied to people who engage in interstate commerce.
 UNITED STATES V. ZEPEDA 29

“[A]ny person, of whatever race, has the right to demand
that any governmental actor subject to the Constitution justify
any racial classification subjecting that person to unequal
treatment under the strictest judicial scrutiny.” Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 224 (1995).
Indians are no exception. The Supreme Court has stressed
time and again that federal regulation of Indian tribes does
not equate to federal regulation of the Indian race. Federal
laws governing tribes do “not derive from [] race . . . but
rather from [a tribe’s] quasi-sovereign status . . . under federal
law.” Fisher v. District Court, 424 U.S. 382, 390 (1976) (per
curiam). “[R]egulation is rooted in the unique status of
Indians as [a nation] with their own political institutions . . .
[and] is not to be viewed as legislation of a ‘racial group
consisting of Indians.’” United States v. Antelope, 430 U.S.
641, 646 (1977) (quoting Morton v. Mancari, 417 U.S. 535,
553 n.24 (1974)). In fact, the Supreme Court has specifically
stated that defendants are “not subjected to federal criminal
jurisdiction [under the IMCA] because they are of the Indian
race but because they are enrolled members of [a federally
recognized] tribe.” Id. Taken together, Antelope and
Mancari stand for the proposition that Congress can enact
laws that treat members of federally recognized tribes
differently from non-members so long as that disparate
treatment occurs along political rather than racial lines. That
holding cannot be reconciled with the holding here, which
leaves Congress free to enact any law that racially
discriminates between individuals within a tribe.

2. The panel in Bruce believed itself bound to apply a
racial test because of the Supreme Court’s decision in United
States v. Rogers, 45 U.S. (4 How.) 567 (1846). Rogers is a
nearly 170-year-old case, authored by Chief Justice Taney, in
which the Court held that an adopted, non-racially Indian
30 UNITED STATES V. ZEPEDA

tribe member wasn’t subject to an exemption from federal
criminal jurisdiction for crimes committed by an “Indian”
against another “Indian.” Id. at 572–73. In defining “Indian”
for purposes of the statute, the Court noted that the law “does
not speak of members of a tribe, but of the race
generally,—of the family of Indians,” id. at 573, and justified
the federal government’s exercise of power over “this
unfortunate race” in part based on the need “to enlighten their
minds and increase their comforts, and to save them if
possible from the consequences of their own vices,” id. at
572.

Reliance on pre-civil war precedent laden with dubious
racial undertones seems an odd course for our circuit law to
have followed, especially in light of the Supreme Court’s
much more recent holdings in Mancari and Antelope. And,
even if intervening developments in equal protection law
hadn’t rendered Rogers obsolete, it’s clearly distinguishable.
Rogers stands for the limited proposition that “a white man
who at mature age is adopted in an Indian tribe does not
thereby become an Indian,” 45 U.S. (4 How.) at 572, when
the adoption occurs for the purpose of evading prosecution.
A case that does no more than prohibit a tribe from making
membership exceptions designed to circumvent criminal
punishment is a weak reed upon which to rest the federal
government’s unfettered ability to racially discriminate
between tribe members.

The majority’s strongest support for Bruce’s racial test
appears to be an inference from the fact that the racial
preference upheld in Mancari had a blood quantum
requirement similar to the one at issue here. But that portion
of the provision in Mancari wasn’t challenged by plaintiffs,
nor was there any assertion that the hiring preference in that
 UNITED STATES V. ZEPEDA 31

case discriminated among tribe members. Rather, the
grievance in Mancari was that non-tribe members were
discriminated against by the preferential hiring of tribe
members. The constitutionality of that distinction was upheld
because the preference was given to “tribal entities,” not to a
“racial group.” I find it remarkable that the majority is able
to read a case that upholds tribal preferences only so long as
they are non-racial as a broad endorsement of the
government’s power to racially distinguish between those
within a tribe.

3. Overruling Maggi takes our circuit law in the wrong
direction. Maggi at least tied the racial component in Bruce
to a political relationship. Because Congress’s plenary power
over Indian tribes is rooted in treaties and other political
accommodations between sovereign entities, the validity of
federal regulation must turn, not on a tribe’s existence in
some anthropological sense, but on its political relationship
with the United States. A genuine political relationship
between sovereigns requires reciprocal recognition. Thus, as
we correctly noted in LaPier v. McCormick, a political
relationship between a tribe and the federal government exists
only when “the United States recognizes [the] tribe.”
986 F.2d 303, 305 (9th Cir. 1993). That’s why the Court in
Mancari specifically noted Congress has the power “to
legislate on behalf of federally recognized Indian tribes,”
417 U.S. at 551 (emphasis added), not merely “tribes.”

Maggi ensured that we tied Bruce’s racial component to
this political relationship. Regulation was rooted in a racial
connection to an established political entity, rather than in an
unadorned racial characteristic. Maggi was less than perfect,
of course. At bottom, a racial distinction still controlled the
application of federal law. But at least the racial lineage in
32 UNITED STATES V. ZEPEDA

question bore some relation to the purported source of federal
power. An unrecognized tribe is not a quasi-sovereign
political entity for the purposes of federal law, and has no
political relationship whatsoever with the United States. To
allow a federal statute to turn solely on a racial connection to
an unrecognized tribe has no basis in the justification for
disparate treatment articulated in Mancari and Antelope.

* * *

By extending Bruce and overruling Maggi, the majority
creates a disturbing anomaly in the application of our equal
protection law. The majority empowers Congress to
distribute benefits and burdens within Indian tribes along
purely racial lines. It may be that Congress will never use
that power to work racial injustice, but the Constitution’s
commands are inexorable precisely because we aren’t
prescient enough to predict all the ways in which the
government can abuse the power we give to it. Whatever
complexities may be inherent in the federal regulation of
Indian tribes, the equal protection clause permits no
exceptions. Racial classifications must survive the strictest
scrutiny. Those that cannot have no place in our law.
 UNITED STATES V. ZEPEDA 33

IKUTA, Circuit Judge, with whom KOZINSKI, Circuit
Judge, joins, concurring in the judgment:

The majority today holds that we must continue to define
an Indian by the “degree of Indian blood” as required by
United States v. Bruce, 394 F.3d 1215, 1223 (9th Cir. 2005).
Maj. Op. at 13–14. This is a troubling conclusion, and an
unnecessary one. The Bruce blood quantum requirement
serves no purpose, because the second prong of the Bruce test
adequately defines an Indian based on his “tribal or
government recognition as an Indian.” Bruce, 394 F.3d at
1223 (internal quotation mark omitted). In holding that a
person is not an Indian unless a federal court has determined
that the person has an acceptable Indian “blood quantum,” we
disrespect the tribe’s sovereignty by refusing to defer to the
tribe’s own determination of its membership rolls. It’s as if
we declined to deem a person to be a citizen of France unless
that person can prove up a certain quantum of “French
blood,” and we declared that adoptees whose biological
parents are Italian cannot qualify.

Because there is no need to use the blood quantum test in
this context, we should avoid perpetuating the sorry history
of this method of establishing a race-based distinction. Early
in our history, state courts used blood quantum tests to
determine who was a slave and who was free. See Gentry v.
McMinnis, 33 Ky. (3 Dana) 382, 385 (1835) (explaining that
“[a]ll persons of blood not less than one-fourth African, are
(in Virginia and Kentucky) prima facie deemed slaves; and,
e converso, whites and those less than one-fourth African,
are, prima facie, free”). Even after slavery was abolished,
states used blood quantum tests to define “persons of color”
and to ensure segregation of “persons of color” from white
persons. See, e.g., 1 Pope’s Digest of Stats. of Ark. § 1200
34 UNITED STATES V. ZEPEDA

(1937) (defining persons who “belong to the African race,”
for the purposes of railroad segregation, as “[p]ersons in
whom there is a visible and distinct admixture of African
blood”); Ga. Code Ann. § 79-103 (1933) (defining “persons
of color” as persons who have “any ascertainable trace” of
colored blood); Va. Code Ann. § 67 (Michie 1924) (defining
a “colored person” as a person “having one-sixteenth or more
of negro blood” and “an Indian” as a non-colored person with
one-fourth Indian blood). And the same blood quantum tests
determined who could vote. See People v. Dean, 14 Mich.
406, 413–15, 425 (1866) (construing state law giving only
“white male citizens” the right to vote as excluding persons
of African descent unless they had less than one-fourth
African blood).

Similarly, states relied on blood quantum tests to prevent
white people from marrying persons of color. See Loving v.
Virginia, 388 U.S. 1, 6 (1967). Loving finally invalidated
Virginia’s miscegenation laws, which prohibited
intermarriage between white persons and nonwhites, and
explained that the term “white person” applied “only to such
person as has no trace whatever of any blood other than
Caucasian; but persons who have one-sixteenth or less of the
blood of the American Indian and have no other
non-Caucasic blood shall be deemed to be white persons.”
Id. at 5 n.4, 12 (quoting Va. Code Ann. § 20–54 (1960)).

Our nation also used blood quantum tests to discriminate
against nonwhites who wanted to become citizens. Congress
decreed that only a “free white person[]” could be granted the
“privilege of naturalization,” and courts generally construed
this requirement to mean that “men are not white if the strain
of colored blood in them is a half or a quarter, or, not
improbably, even less, the governing test always being that of
 UNITED STATES V. ZEPEDA 35

common understanding.” Morrison v. California, 291 U.S.
82, 85–86 (1934) (internal citation and quotation marks
omitted); see also 8 U.S.C. § 703 (1940) (extending the right
to be a naturalized citizen only to persons with an approved
admixture of blood of specified classes). In ten states, only
persons who met the blood quantum requirement for
naturalization could own land. See Dudley O. McGovney,
The Anti-Japanese Land Laws of California and Ten Other
States, 35 Calif. L. Rev. 7, 7–9 (1947). And during World
War II, the government took into account the quantum of a
citizen’s Japanese blood in determining who would be held
in internment camps. See J.L. DeWitt, Final Report:
Japanese Evacuation from the West Coast, 1942, at 145
(1943) (noting that “[m]ixed-blood (one-half Japanese or
less) individuals,” among others, were eligible for exemption
from evacuation).

The Supreme Court recently reaffirmed opposition to
“[a]ncestral tracing of this sort” in laws that serve to enable
race-based distinctions. Rice v. Cayetano, 528 U.S. 495, 510,
517, 524 (2000) (holding unconstitutional a Hawaiian
constitutional provision that limited voting, by statute, to
“any descendant of not less than one-half part of the races
inhabiting the Hawaiian Islands previous to 1778”). Because
we have no need to use this metric, and because I doubt it
would survive strict scrutiny, I join Judge Kozinski’s
concurrence in full and concur in the judgment only. It is
regrettable that we did not take the opportunity as an en banc
panel to remove Bruce’s first prong from our jurisprudence.