and Submitted October 10, 2018 Portland, Oregon
from the United States District Court No. 3:16-cr-00436-BR-1
for the District of Oregon Anna J. Brown, District Judge,
Huseby (argued), Assistant Federal Public Defender, Office of
the Federal Public Defender, Portland, Oregon, for
T. Maloney (argued), Assistant United States Attorney; Kelly
A. Zusman, Appellate Chief; Billy J. Williams United States
Attorney; United States Attorney's Office, Portland,
Oregon; for Plaintiff-Appellee.
Veronica C. Gonzales-Zamora, Brownstein Hyatt Farber Schreck
LLP, Albuquerque, New Mexico; Barbara L. Creel, Southwest
Indian Law Clinic, University of New Mexico School of Law,
Albuquerque, New Mexico; for Amicus Curiae Southwest Indian
Before: Raymond C. Fisher, Richard R. Clifton, and Consuelo
M. Callahan, Circuit Judges.
panel affirmed a conviction for two counts of fleeing or
attempting to elude a police officer in violation of Oregon
Revised Statutes § 811.540(1), as assimilated by 18
U.S.C. § 13, the Assimilative Crimes Act (ACA), and 18
U.S.C. § 1152, the Indian Country Crimes Act (ICCA).
panel held that the ACA applies to Indian country, by
operation of both 18 U.S.C. § 7 (concerning land
"reserved or acquired for the use of the United
States" and "under the exclusive or concurrent
jurisdiction thereof") and the ICCA (concerning
"federal enclave" laws).
panel held that the ACA, when invoked in Indian country, is
subject to the exceptions set forth in the ICCA, namely: (1)
"offenses committed by one Indian against the person or
property or property of another Indian," (2) "any
Indian committing any offense in the Indian country who has
been punished by the local law of the tribe," or (3)
"any case where, by treaty stipulations, the exclusive
jurisdiction over such offenses is or may be secured to the
Indian tribes respectively." The panel held that the
Indian-on-Indian exception in the ICCA does not preclude
application of the ACA to all "victimless" crimes,
and certainly not to the offense in this case. Noting that
the ICCA excludes from federal prosecution only Indian
defendants who have already been punished by their tribe, the
panel rejected the defendant's contention that because he
could have been punished in tribal court for the
same conduct, his prosecution under the ACA was a needless
and unlawful intrusion into tribal sovereignty.
panel rejected the defendant's claim that 18 U.S.C.
§ 1153, the Major Crimes Act (MCA), precludes the
government from prosecuting any "state crimes" in
Indian country that are not listed in the MCA, such as
Smith's offense of fleeing and attempting to elude the
police as defined under Oregon law.
Judge Fisher agreed with the majority that the ACA applies to
"Indian country" subject to the ICCA's three
exceptions. Observing that there are two ways to arrive at
that result, he wrote that he has some reservations about the
majority's chosen approach - that the ACA applies to
Indian country on its own terms subject to the ICCA's
Callahan, Circuit Judge.
Johnny Ellery Smith appeals from his district court
conviction, by guilty plea, of two counts of fleeing or
attempting to elude a police officer in violation of Oregon
Revised Statutes (ORS) § 811.540(1), as assimilated by
18 U.S.C. § 13, the Assimilative Crimes Act (ACA), and
18 U.S.C. § 1152, the Indian Country Crimes Act (ICCA).
Smith argues that the federal government lacked jurisdiction
to prosecute him for his violation of state law in Indian
country because the ACA does not apply to Indian country.
While previous decisions may state otherwise, Smith argues
that these cases merely assumed the applicability of the ACA
to Indian country and did not directly address it, and thus
do not control. Second, Smith contends that even if the ACA
applies generally to Indian country, federal prosecution
under the ACA was barred in his case because he could have
been prosecuted under tribal law for the same offense. Third,
Smith asserts that 18 U.S.C. § 1153, the Major Crimes
Act (MCA), "occupies the field of federal court
jurisdiction over Indian country violations of state
laws" and thus precludes federal prosecution of his
assimilated state crime.
not find Smith's arguments persuasive. To the extent that
this issue was not settled by the Supreme Court decision in
Williams v. United States, 327 U.S. 711 (1946), and
our decision in United States v. Marcyes, 557 F.2d
1361 (9th Cir. 1977), we confirm that the ACA applies to
Indian country, through the operation of 18 U.S.C. § 7
and § 1152. The district court had jurisdiction over
Smith's offenses under the ACA and the ICCA, and
accordingly we affirm his convictions.
is an enrolled Indian member of the Confederated Tribes of
Warm Springs. In September 2016, Smith fled in his vehicle
from Warm Springs police officers when they tried to initiate
a traffic stop, leading the officers on a highspeed pursuit.
During this chase, Smith drove at speeds exceeding 77 miles
per hour, crossed over the fog line multiple times, and
traveled in the opposing lane of traffic for approximately
100 yards. He eventually turned onto an unpaved dirt path, at
which point the officers stopped their pursuit for safety
than two months later, Smith again fled from Warm Springs
police officers when they attempted to conduct a traffic stop
after observing him speeding. During this pursuit, Smith
drove up to 120 miles per hour, failed to stay in the proper
lane, drove into the opposite lane of travel, and at one
point, slammed on his brakes, causing a pursuing patrol
vehicle to rear-end his vehicle. Eventually the officers
forced Smith's vehicle off the road, where he exited his
vehicle and attempted to flee on foot, but was ultimately
stopped and arrested. Both incidents occurred on the Warm
Springs Indian Reservation within the State of Oregon.
was charged in federal district court with two counts of
fleeing or attempting to elude a police officer, in violation
of ORS § 811.540(1), as assimilated by the ACA and the
ICCA. Smith was not charged in tribal court for fleeing or
attempting to elude a police officer based on these
filed a motion to dismiss the indictment on the ground that
the government lacked jurisdiction to charge him in federal
court for a state law violation alleged to have been
committed by an Indian in Indian country. The district court
denied the motion, after which Smith pled guilty to the two
counts in the indictment, while reserving his right to appeal
the district court's decision on the jurisdictional
review de novo jurisdictional issues over criminal offenses.
United States v. Begay, 42 F.3d 486, 497 (9th Cir.
primary jurisdictional challenge to his convictions is that
the ACA does not apply to Indian country, despite the line of
cases that have suggested or stated otherwise. The original,
and most commonly cited, precedent for the proposition that