Case :-mj-00-mea Document 0 Filed 0/0/ Page of 0 JON M. SANDS Federal Public Defender District of Arizona N. San Francisco Street, Suite Flagstaff, AZ 00 Telephone: () - Fax: () - Luke Mulligan, State Bar # 0 Asst. Federal Public Defender Attorney for Defendant Luke_Mulligan@fd.org IN THE UNITED STATES DISTRICT COURT United States of America, vs. Plaintiff, Julian Ismael Loera, Defendant. DISTRICT OF ARIZONA No. -00M-00-PCT-MEA MOTION TO DISMISS INDIAN STATUS (Hearing requested) The defendant moves to dismiss the Complaint for lack of subject matter jurisdiction under USC because the defendant is an Indian under federal law. The government has charged Mr. Loera, as a non-indian, with simple assault on an Indian within the Fort Mojave Indian Reservation under USC. Jurisdiction under does not extend to offenses committed by one Indian against the person or property of another Indian. Because Mr. Loera is an Indian under federal law, the complaint must be dismissed. The Ninth Circuit Court of Appeals set forth the factors to be considered in
Case :-mj-00-mea Document 0 Filed 0/0/ Page of 0 determining whether an individual is an Indian for purposes of federal criminal jurisdiction in U.S. v. Bruce, F.d (0). The Bruce test has two prongs; the first is Native American ancestry to a federally recognized Indian tribe. Id. at. The Fort Mojave Tribe is federally recognized. (Exhibit A Federal Register, p.,-, list of federally recognized Indian tribes. The Fort Mojave Indian Tribe of Arizona, California and Nevada is listed on page,.) Mr. Loera is / th Fort Mojave Indian. (Exhibit B-Letter from Fort Mojave Indian Tribe Enrollment Department, February,.) Mr. Loera s blood quantum is greater than the blood quantum (/ th ) that the Ninth Circuit has previously held to be adequate to establish Native American Ancestry. US v. Maggi, F.d 0, 00 (0). Clearly, Mr. Loera meets the first prong of the Bruce test. The second prong of the Bruce test is whether the individual has sufficient non-racial links to the Indian tribe in question. This prong is broken down into the following four factors, in declining order of importance: () Tribal Enrollment, () Government Recognition of Indian Status, () Enjoyment of Benefits of Tribal Affiliation, () Social Recognition as an Indian. Mr. Loera also satisfies the second prong of the test because, while he is not eligible for tribal enrollment, every other factor militates in favor of Indian status. Mr. Loera s Indian status is recognized by both the tribal government and Tribal enrollment is a consideration under Bruce, but it is not dispositive. F.d at.
Case :-mj-00-mea Document 0 Filed 0/0/ Page of 0 the federal government in a variety of ways. As a descendant of a tribal member (his mother, Lydia Ruiz), Mr. Loera is entitled to free medical care at the Fort Mojave Indian Health Center. (Exhibit C Fort Mojave Indian Tribe Health Department website, http://mojaveindiantribe.com/health-department/.) According to Ms. Ruiz, as a child, Mr. Loera received all of his medical care through Indian Health Services contract doctors. Subsequently, since the Fort Mojave Indian Health Center opened, Mr. Loera has received his medical care from that facility. (Exhibit D - Ft. Mojave Indian Health Center Records for defendant, dates of treatment: October,, February,, June, 0, June, 0, May, 0.) As a descendant of a tribal member, Mr. Loera is also entitled to free services from the Fort Mojave Indian Tribe Behavioral Health Department. (Exhibit E Fort Mojave Indian Tribe Health Department website, http://mojaveindiantribe.com/behavioral-health-department/.) According to the tribal human resources department, as a descendant, Mr. Loera is entitled to preference in employment. Enrolled tribal members receive first preference, but Mr. Loera would receive preference over non-indian applicants for tribal employment. As a descendant, Mr. Loera is entitled to use the following tribal facilities for free: Education Center, Gymnasium/Recreation Center, Golf Course, Tribal Nutrition Center, Fort Mojave Cultural Center, and Tribal Behavioral Health
Case :-mj-00-mea Document 0 Filed 0/0/ Page of 0 Services. Further, as a juvenile, Mr. Loera was prosecuted in the tribal court system and served ten days in the BIA jail in Peach Springs, AZ. He has also been arrested numerous times by Fort Mojave Tribal law enforcement officers. Clearly, Mr. Loera has had substantial recognition as an Indian from the Fort Mojave Tribe. Mr. Loera is also recognized as an Indian by federal law. The Indian Health Care Improvement Act of includes in its definition of Indian any person who is a descendant, in the first or second degree of a tribal member. U.S.C. 0(). Mr. Loera is socially and culturally an Indian as well. Mr. Loera was raised on the Fort Mojave reservation and has lived on the reservation for nearly his entire life. His mother and son are enrolled tribal members. (Exhibits F & G, Certificates of Tribal Membership for Lydia Ruiz and Julian Loera, Jr.) Mr. Loera s community of friends and family are nearly all tribal members or descendants. Throughout his life, Mr. Loera has participated in the tribal social and cultural events. As a youth, he played on the tribal basketball team. He has attended and participated in tribal powwows throughout his life. He has attended and participated in Fort Mojave Indian Days, which is an annual celebration of the Fort Mojave tribal people and culture. He has some fluency in the tribal language. Mr. Loera has participated in tribal ritual of Bird Singing, which is
Case :-mj-00-mea Document 0 Filed 0/0/ Page of 0 singing in the tribal language and playing the gourd. Mr. Loera has numerous tattoos which celebrate his Fort Mojave tribal heritage. He has two tattoos on his arms which identify him as descended from the Coyote clan. He also has a tattoo of a tribal council meeting across his back. Finally, when Mr. Loera was in prison he participated in Native American sweat lodge ceremonies. Mr. Loera is an Indian for purposes of federal criminal jurisdiction under the Bruce test because he is / th Fort Mojave Indian and he has sufficient nonracial links to the Fort Mojave Tribe; he is entitled to tribal benefits and he is socially and culturally an Indian. In a criminal case charged under U.S.C., once the defense has brought forth sufficient evidence upon which a trier of fact could rationally conclude that the defendant is an Indian, the government bears the burden to disprove Mr. Loera s Indian status beyond a reasonable doubt. Bruce, F.d at 0. The defendant requests that this matter be set for an evidentiary hearing. It is expected that excludable delay under Title U.S.C. (h)()(d) may occur as a result of this motion or from an order based thereon. Respectfully submitted: March,. JON M. SANDS Federal Public Defender s/ Luke Mulligan Luke Mulligan Asst. Federal Public Defender
Case :-mj-00-mea Document 0 Filed 0/0/ Page of 0 Copy of the foregoing transmitted by CM/ECF for filing and served on March,, to: Honorable Mark Aspey United States Magistrate Court N. San Francisco Street, Suite 0 Flagstaff, AZ 00 Paul Stearns Assistant United States Attorney N. San Francisco Street, Suite 0 Flagstaff, AZ 00 Copy mailed to: Julian Ismael Loera, Defendant s/ Amy Rhodes Amy Rhodes