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Court reverses shooting convictions on question of tribal membership

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WASHINGTON – A federal appeals court Thursday overturned multiple shooting convictions of a Tohono O’odham man, saying prosecutors had not proved that the man was a member of a federally recognized tribe.

A divided panel of the 9th U.S. Circuit Court of Appeals said evidence only showed that Damien Zepeda was “Tohono O’odham,” but the official name of the federally recognized tribe is “Tohono O’odham Nation of Arizona.” Because it was not clear that Zepeda was a member of the federally recognized tribe, the court said, he should not have been tried in the federal district court that convicted him.

Zepeda was convicted under a law that gives the federal government jurisdiction over serious crimes committed by Native Americans on reservations.

“We are not free to speculate that Zepeda’s Tohono O’odham blood is derived from the Tohono O’odham Nation of Arizona,” said the majority opinion written by Judge Richard Paez.

In a one-paragraph dissent,   Judge Paul Watford said simply that a jury could have reasonably inferred that Tohono O’odham referred to the recognized Tohono O’odham Nation of Arizona.

Zepeda’s attorney, Michele Moretti, welcomed the majority decision, saying there “was absolutely no evidence put on by the government” linking her client to a specific tribe that is recognized by the federal government.

But the director of the Indian Legal Clinic at Arizona State University’s Sandra Day O’Connor College of Law said the ruling undermines the purpose of the law that allows federal jurisdiction in major crimes on reservations. Patty Ferguson-Bohnee said the court was “splitting hairs” when it said Zepeda’s status as Tohono O’odham did not mean he was part of a federally recognized tribe.

“This clearly falls within what the U.S. meant as a crime that could be prosecuted by the U.S. attorney office,” Ferguson-Bohnee said.

In October 2008, according to court documents, Zepeda and his brothers Jeremy and Matthew went to the home of Dallas Peters on the Ak-Chin Reservation south of Phoenix. There, Damien and Matthew “opened fire” on the house’s occupants, injuring Peters, the court said.

To prove at trial that Zepeda was a Native American, prosecutors submitted an enrollment certificate that said Zepeda was an “enrolled member of the Gila River Indian Community” and that he was one-quarter Pima and one-quarter Tohono O’odham. The trial court accepted this as sufficient evidence of his Indian blood.

Zepeda was ultimately convicted on nine counts, including conspiracy to commit assault, assault with a deadly weapon, and use of a firearm during a crime of violence.

But the appeals court said that “Gila River Indian Community” did not necessarily mean the federally recognized Gila River Indian Community of the Gila River Indian Reservation, Arizona. And “Tohono O’odham” did not necessarily refer to the federally recognized Tohono O’odham Nation of Arizona.

The appellate court overturned eight of the convictions on the grounds that prosecutors did not provide sufficient evidence connecting Zepeda to a federally recognized tribe. Zepeda awaits sentencing for his one remaining conviction of conspiracy.

The U.S. Attorney’s Office in Arizona declined to comment on the case Thursday.

Moretti said the ruling was a reminder that prosecutors cannot cut corners when it comes to evidence. The case hinged on Zepeda’s affiliation with a federally recognized tribe, and the government did not prove that connection, she said.

“This simply reminds those in the circuit and elsewhere of the requirements of the law that has always been in place – that the government must provide sufficient evidence on every element of the crime,” Moretti said.