My grandmother was part Cherokee. I am, I understand, something around one sixty-fourth Cherokee. And, I understand, for years my grandmother’s family tried to hide their Indian status.
They did that for a lot of reasons, but a big one is how the federal government would prefer it if fewer folks were Native American.
Oh, how times change – now the government wants folks to be Indians, as the Ninth Circuit’s opinion in United States v. Alvirez shows us.
Every Unhappy Family Is Unhappy In Its Own Way
Edgar Mike Alvirez’s family had gotten together to spend some time in each other’s company. They were at his mother’s house. His girlfriend was there. A woman named Drametria Havatone was also there.
At some point, Mr. Alvirez’s mother and Ms. Havatone got to talking about how Mr. Alvirez doesn’t help his mother out with her financial needs.
By way of counterpoint, Mr. Alvirez’s girlfriend – and another woman – starting punching and kicking Ms. Havatone. Ms. Havatone was forcibly removed from the house by the two women.
She fell to the ground. If you believe what the jury did, as she lay there, Mr. Alvirez stepped on her ankle, breaking it badly in several places.
The Law In Indian Country
Mr. Alvirez was charged with violating 18 U.S.C. § 1153, which is a peculiar statute. Though it’s called “Assaults in Indian Country”, what it says is that it applies to an assault by an Indian:
Any Indian who commits against the person or property of another Indian or other person . . . assault resulting in serious bodily injury . . . within the Indian country, shall be subject to the same law and penalties as all other persons . . . within the exclusive jurisdiction of the United States.
So, to prove that Mr. Alvirez violated section 1153, the government had to prove that he committed assault resulting in serious bodily injury and that he is an Indian.
The Ninth Circuit explained how proving up Indian status works (internal citations omitted):
We apply a two-prong test to determine if this element has been met. First, the government must prove “that the defendant has a sufficient degree of Indian blood,” and second, the government must establish that the defendant “has tribal or federal government recognition as an Indian.”
To prove the first part of that, the Ninth Circuit has explained,
To satisfy the first prong, the government need only prove that the defendant has “some” Indian blood as a descendant of an Indian parent, grandparent, or great-grandparent.
One way to satisfy this test is by introducing a Certificate of Indian Blood.
Some Documents Are Better Than Others
At Mr. Alvirez’s trial, the government introduced a Certificate of Indian Blood through an agent. It argued that the document, which was issued by an Indian tribe, was self-authenticating under Federal Rule of Evidence 902(1).
Though the district court let the certificate in, on appeal this argument lost. The Ninth Circuit held that a certificate from an Indian Tribe is not self-authenticating. Rule 902(1) lists the entities that can issue a self-authenticating document: “United States; a State of the United States; a commonwealth, territory, or insular possession of the United States; the Panama Canal Zone; and the Trust Territory of the Pacific Islands”
Indian tribes aren’t on the list.
The Federal Government Sometimes Wants Indian Tribes To Be A Part Of The Federal Government
The government also argued that tribes are basically a part of the federal government – so tribal documents are basically federal government documents. This, too, was shot down:
Tribes are “sovereigns or quasi sovereigns,” Kiowa Tribe of Okla. v. Mfg. Tech., Inc., 523 U.S. 751, 757 (1998), not one of the political entities into which the federal government is divided, see Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978) (“As separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority.”).
Because the Certificate came in, it shouldn’t have, and it went to whether Mr. Alvirez is an Indian for section 1153 purposes, the conviction was vacated and the case was remanded for a new trial.
This was a cool, tough case – nice work to AFPD Dan Kaplan for the win!