Petition for Writ of Certiorari — Johnny Ellery Smith, Petitioner v. United States

APPENDIX

APPENDIX

TABLE OF CONTENTS

Page

Memorandum of the United States Court of Appeals for the Ninth Circuit affirming the district court’s denial of Mr. Smith’s 28 U.S.C.

§2255 motion, dated August 4, 2022 ........................ 1a

Opinion and Order of the United States District

Court for the District of Oregon denying

Mr. Smith’s 28 U.S.C. §2255 motion, dated

January 13, 2021 ......................................................... 5a

Opinion of the United States Court of Appeals

for the Ninth Circuit affirming the district

court’s denial of Mr. Smith’s motion to dismiss the indictment for lack of jurisdiction,

dated May 28, 2019 ................................................... 15a

Opinion and Order of the United States District

Court for the District of Oregon denying

Mr. Smith’s motion to dismiss the indictment for lack of jurisdiction, dated August

15, 2017 ....................................................................... 39a

Order of the United States Court of Appeals for

the Ninth Circuit denying petition for panel

rehearing and petition for rehearing en

banc, dated October 13, 2022 .................................. 55a

1a

APPENDIX A

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 21-35036

D.C. Nos. 3:20-cv-01951-JO, 3:16-cr-00436-JO-1

[FILED Aug. 4, 2022]

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHNNY ELLERY SMITH,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Oregon

Robert E. Jones, District Judge, Presiding

Argued and Submitted February 7, 2022

Portland, Oregon

MEMORANDUM*

Before: PAEZ and NGUYEN, Circuit Judges, and

TUNHEIM, District Judge.

*

This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3.



The Honorable John R. Tunheim, United States District

Judge for the District of Minnesota, sitting by designation.

2a

Defendant Johnny Ellery Smith, an enrolled member of the Confederated Tribes of Warm Springs, appeals the district court’s denial of his 28 U.S.C. § 2255

motion. We previously affirmed Smith’s convictions on

direct appeal, holding that the federal government had

jurisdiction to prosecute him for violations of Oregon

law committed on the Warm Springs Reservation because the Assimilative Crimes Act (“ACA”) applies to

Indian country. United States v. Smith, 925 F.3d 410

(9th Cir. 2019). Smith now seeks to vacate his convictions on the ground that the Supreme Court’s subsequent decisions in McGirt v. Oklahoma, 140 S. Ct. 2452

(2020) and Oklahoma v. Castro-Huerta, 142 S. Ct. 2486

(2022) are “clearly irreconcilable” with our prior holding. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.

2003). We have jurisdiction under 28 U.S.C. § 2253, and

we affirm.

In Smith, we held that the ACA applies to Indian

country via the Indian Country Crimes Act (“ICCA”).

925 F.3d at 418. The ICCA extends to Indian country

the “general laws of the United States as to the punishment of offenses committed in any place within the

sole and exclusive jurisdiction of the United States.” 18

U.S.C. § 1152. We reasoned in Smith that the “general

laws” referred to in the ICCA are the laws governing

federal enclaves. 925 F.3d at 418. Therefore, “[t]he

ACA, as a federal enclave law, … applies to Indian

country by operation of the ICCA.” Id.

Castro-Huerta is not clearly irreconcilable with

that holding. Smith does not dispute that the “general

laws” extended to Indian country by the ICCA are the

“federal laws that apply in federal enclaves.” CastroHuerta, 142 S. Ct. at 2495. Rather, he contends that

the ACA is not among such “general laws” because “the

ACA is not a federal criminal law.” That question,

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however, was not decided in Castro-Huerta, which

made no mention of the ACA. The relevant portion of

Castro-Huerta focused instead on whether the text of

the ICCA rendered Indian country the equivalent of a

federal enclave such that the federal government had

exclusive jurisdiction to prosecute criminal offenses

committed there. Id.

Finally, we also reject as unpersuasive Smith’s contention that McGirt is clearly irreconcilable with our

prior holding that his prosecution was not prohibited by

the third exception to the ICCA’s scope, which applies

when a treaty stipulation reserves for a tribe “exclusive jurisdiction over [the relevant] offenses.”

See Smith, 925 F.3d at 420 (quoting 18 U.S.C. § 1152).1

McGirt does not address the ICCA exceptions, and its

reasoning does not undermine Smith’s analysis of them.

See id. at 420-21.

AFFIRMED.

1

Smith also held that the ACA applies to Indian country by

its own terms (and not just via the ICCA). See 925 F.3d at 415-18.

We reasoned that Indian country qualifies as a “federal enclave”

under the ACA, and thus the ACA’s provisions apply there. Id.

Smith contends that this holding is undermined by McGirt because

there is no clear expression of congressional intent to apply the

ACA to the Reservation, and by Castro-Huerta because it implicitly held that Indian country and federal enclaves are not equivalents. We need not reach these arguments in light of our conclusion that the ACA applies to Indian country via the ICCA.

5a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

No. 3:16-cr-00436-JO

UNITED STATES OF AMERICA,

Plaintiff,

v.

JOHNNY ELLERY SMITH,

Defendant.

Filed January 13, 2021

OPINION AND ORDER

JONES, J.

Defendant Johnny Ellery Smith, an enrolled member of the Confederated Tribes of Warm Springs, was

indicted by a federal grand jury on two counts of fleeing or attempting to elude Warm Springs police officers

on the Warm Springs Indian Reservation. Defendant

moved to dismiss the indictment for lack of jurisdiction.

ECFNo. 12. After this court denied the motion to dismiss, ECF No. 21, Defendant pleaded guilty, reserving

the right to appeal the denial of the motion to dismiss.

On appeal, the Ninth Circuit affirmed, rejecting the jurisdictional arguments raised by Defendant. United

States v. Smith, 925 F.3d 410 (9th Cir.) (Smith), cert.

denied, __ U.S, __, 140 S. Ct. 407 (2019).

In July 2020, the U.S. Supreme Court issued

McGirt v. Oklahoma, __ U.S. __, 140 S. Ct. 2452, hold-

6a

ing that the State of Oklahoma lacked jurisdiction to

prosecute Jimcy McGirt, an enrolled member of the

Seminole Nation, because his crimes occurred within

the boundaries of the Creek Reservation. Defendant

then filed this motion under 28 U.S.C. § 2255, contending that the Ninth Circuit’s decision in Smith is irreconcilable with the reasoning of the Supreme Court’s

decision in McGirt. I deny Defendant’s § 2255 motion

because McGirt does not effectively overrule the Ninth

Circuit’s decision in Smith.

BACKGROUND

In September and October 2016, Defendant led

Warm Springs police officers on two high-speed vehicle

chases at night. Presentence Report (PSR) ¶¶ 7-14,

ECF No. 84. Defendant was charged with two counts

of fleeing or attempting to elude a police officer in violation of Or. Rev. Stat. § 811.540(1).

After his jurisdictional challenge failed, Defendant

pleaded guilty. On November 30, 2017, Judge Brown

sentenced Defendant to 19 months and one day in prison, followed by three years of supervised release, ECF

Nos. 34, 35. The Ninth Circuit affirmed the conviction

in May 2019.

LEGAL STANDARDS

Under 28 U.S.C. § 2255, a federal prisoner in custody on a sentence after conviction may move the court

that imposed the sentence to vacate, set aside, or correct the sentence because

the sentence was imposed in violation of the

Constitution or laws of the United States, or …

the court was without jurisdiction to impose

such sentence, or … the sentence was in excess

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of the maximum authorized by law, or is otherwise subject to collateral attack … .

28 U.S.C. § 2255(a). To prevail on a motion under

§ 2255, a defendant must show that an error of constitutional magnitude occurred and that the error had a substantial and injurious effect or influence on the guilty

plea or the jury’s verdict. Brecht v. Abrahamson, 507

U.S. 619, 637 (1993).

DISCUSSION

In Smith, the Ninth Circuit held that this court had

jurisdiction over the charges against Defendant, based

on the Assimilative Crimes Act, 18 U.S.C. § 13, and on

the Indian Country Crimes Act, 18 U.S.C. § 1152,

Smith, 925 F.3d at 412. Defendant now contends that

the Supreme Court’s decision in McGirt in effect overrules Smith. This presents a purely legal issue.

The Ninth Circuit has explained that when “the reasoning or theory of our prior circuit authority is clearly

irreconcilable with the reasoning or theory of intervening higher authority, a three-judge panel should consider

itself bound by the later and controlling authority, and

should reject the prior circuit opinion as having been effectively overruled.” Miller v. Gammie, 335 F,3d 889,

893 (9th Cir. 2003) (en banc). District courts apply the

same “clearly irreconcilable” test when determining

whether prior circuit authority has been overruled. See

United States v. Ramirez-Arroyo, No. 3:08-cr-00228-MO,

2019 WL 1223309, at *1 (D. Or. Mar. 15, 2019). “The issues presented in the two cases need not be identical in

order for the intervening higher authority to be controlling.” Rodriguez v. AT & T Mobility Servs. LLC, 728

F.3d 975, 979 (9th Cir. 2013). However, “‘[i]t is not

enough for there to be ‘some tension’ between the intervening higher authority and prior circuit precedent, or

8a

for the intervening higher authority to ‘cast doubt’ on

the prior circuit precedent.’” United States v. Walker,

953 F.3d 577, 580 (9th Cir. 2020) (quoting Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir. 2012) (citations omitted)). “Rather, the relevant court of last resort must

have undercut the theory or reasoning underlying the

prior circuit precedent in such a way that the cases are

clearly irreconcilable.” Miller, 335 F.3d at 900.

I.

The Ninth Circuit’s Decision in Smith

On appeal, Defendant made essentially the same jurisdictional arguments that he is making now, although

of course without citing McGirt. The Ninth Circuit first

addressed Defendant’s argument that the Assimilative

Crimes Act (ACA) does not apply to Indian country. 925

F.3d at 414. The ACA provides in relevant part:

Whoever within or upon any of the places now

existing or hereafter reserved or acquired as

provided in [18 U.S.C. § 7] … is guilty of any

act or omission which, although not made punishable by any enactment of Congress, would

be punishable if committed or omitted within

the jurisdiction of the State, Territory, Possession, or District in which such place is situated,

by the laws thereof in force at the time of such

act or omission, shall be guilty of a like offense

and subject to a like punishment.

18 U.S.C. § 13(a). The Ninth Circuit acknowledged that

the ACA “lacks any express reference to Indians or Indian country.” 925 F.3d at 415. The Ninth Circuit

looked to the ACA’s reference to 18 U.S.C. § 7, which

defines areas within the “special maritime and territorial jurisdiction of the United States,” “which are often

referred to as ‘federal enclaves.’” 925 F.3d at 415 (citing United States v. Markiewicz, 978 F.2d 786, 797 (2d

9a

Cir. 1992)). The Ninth Circuit explained, “If an offense

is committed in a federal enclave and there is no federal

statute defining that offense (i.e., an offense ‘not made

punishable by any enactment of Congress’), the federal

government may nonetheless prosecute the offense

through the ACA by assimilating a ‘like offense’ and

‘like punishment’ from the law of the state in which the

federal enclave is situated.” 925 F.3d at 415.

The Smith court then addressed whether “the

Warm Springs Indian Reservation where Smith’s offenses occurred … qualifies as one of these ‘places …

reserved or acquired as provided in [18 U.S.C. § 7].’”

925 F.3d at 415 (quoting 18 U.S.C. § 13(a)). The court

noted that despite the ACA’s failure to refer specifically to Indian country or Indian reservations, 18 U.S.C.

§ 7(3) “defines federal territorial jurisdiction to include

‘[a]ny lands reserved or acquired for the use of the

United States, and under the exclusive or concurrent

jurisdiction thereof.’” The court held that land may be

considered “reserved or acquired for the use of the

United States” under 18 U.S.C. § 7(3) even if the United States is not the owner or occupant of the land ‘“so

long as the land has been set aside for the use of an instrumentality of the federal government.’” 925 F.3d at

416 (quoting United States v. Corey, 232 F.3d 1166,1177

(9th Cir. 2000)). The Smith court concluded that land

set aside by the federal government for Indian reservations therefore qualifies as land “reserved or acquired

for the use of the United States.”

The Smith court then addressed whether Indian

country falls “under the exclusive or concurrent jurisdiction” of the United States. Reasoning that the

phrase “under the exclusive or concurrent jurisdiction”

refers to the government’s “authority to legislate with

regard to Indian territories and the activities within,”

10a

the court concluded that the United States does have

jurisdiction over Indian county. 925 F.3d at 417, The

court noted that when Congress revised the federal

criminal code in 1948, “it also codified the definition of

Indian country as ‘all land within the limits of any Indian reservation under the jurisdiction of the United

States Government.” 925 F.3d at 417 (quoting 18

U.S.C. § 1151 (a) (emphasis added by Smith)). The

court concluded the ACA applies to Indian country.

925 F.3d at 418.

The Smith court then analyzed the application of

the Indian Country Crimes Act (ICCA), which provides

that “the general laws of the United States as to the

punishment of offenses committed in any place within

the sole and exclusive jurisdiction of the United States,

except the District of Columbia, shall extend to Indian

country.” 18 U.S.C. § 1152. The ICCA contains three

exceptions:

This section shall not extend [1] to offenses

committed by one Indian against the person or

property of another Indian, [2] nor to any Indian committing any offense in the Indian country who has been punished by the local law of

the tribe, [3] or to any case where, by treaty

stipulations, the exclusive jurisdiction over

such offenses is or may be secured to the Indian tribes respectively.

18 U.S.C, § 1152 (numbering added). The Smith court

concluded that the ACA “when invoked in Indian country, is subject to the exceptions set for in the ICCA.”

925 F.3d at 419. The court then found that none of the

ICCA’s three exceptions to federal jurisdiction applied

to Defendant’s offenses, so this court properly exercised jurisdiction under the ACA. 925 F.3d at 421.

11a

The concurrence in Smith disagreed with the majority on one issue, whether the ACA applies to Indian

country independently of the ICCA. The concurring

judge reasoned that “the ACA applies to Indian country only through the ICCA, not on its own terms” because the ACA is included in the ICCA’s reference to

“the general laws of the United States,” 925 F.3d at 423

(Fisher, J., concurring). This difference in reasoning

has no bearing on the Smith court’s ultimate conclusion

that the ACA applies to Indian country, subject to the

ICCA’s three exceptions.

Finally, the Smith court rejected the Defendant’s

argument that the Major Crimes Act (MCA), 18 U.S.C.

§ 1153, occupies the field of federal court jurisdiction

over violations of state law occurring in Indian country,

thereby precluding federal jurisdiction over Defendant’s crimes. The MCA, which was enacted after the

ICCA, grants federal jurisdiction over fourteen specific

serious crimes committed by Indians “against the person or property of another Indian or other person” in

Indian country. 18 U.S.C. § 1153(a). Congress passed

the MCA in direct response to a Supreme Court decision holding that a federal court lacked jurisdiction to

try an Indian for the murder of another Indian in Indian country. 925 F.3d at 422 (citing Ex parte Crow Dog,

109 U.S. 556 (1883)). The Ninth Circuit reasoned that

rather than limit federal authority over crimes

by Indians in Indian country, the MCA extended it to specific ‘major crimes,’ thereby partially withdrawing the exclusive authority of

tribes over Indian-on-Indian crimes previously

afforded by the ICCA. The MCA did not otherwise affect the federal criminal jurisdiction

that was already established by the ICCA for

12a

violations of the ACA and other federal enclave

laws in Indian country.

925 F.3d at 422. The court concluded that under the

ACA and the ICCA, this court had jurisdiction to try

Defendant for attempting to elude.

II. The Supreme Court’s Decision in McGirt v. Okla-

homa

Defendant bases his motion solely on his contention

that the Smith decision is clearly irreconcilable with

the Supreme Court’s subsequent decision in McGirt v.

Oklahoma in two ways: in holding that the Warm

Springs reservation qualified as lands reserved or acquired for use of the United States, and in holding that

the ICCA applies to the Warm Springs reservation. I

conclude that McGirt does not conflict with Smith.

McGirt, an enrolled member of the Seminole Nation

of Oklahoma, was convicted in an Oklahoma state court

of sexual assault. The issue before the Supreme Court

was whether McGirt committed his crimes in Indian

country, depriving Oklahoma state courts of jurisdiction.

The Supreme Court concluded that McGill’s crimes occurred within the boundaries of the reservation Congress had established for the Creek Indians, and that

Congress had never dissolved the Creek Tribe or diminished the boundaries of the reservation, which now include most of the city of Tulsa. 140 S. Ct. at 2460. The

Supreme Court held that only Congress, not the states

or the federal judiciary, has the power to terminate or

reduce an Indian reservation. 140 S. Ct. at 2462. The

Court acknowledged that since establishing the Creek

Reservation, Congress has “broken more than a few of

its promises to the Tribe,” including allowing the land

allotted to the Tribe to be “fractured into pieces.” 140 S.

Ct. at 2462. However, because Congress had never en-

13a

acted legislation to diminish the Creek Reservation, the

land remained Indian country, and Oklahoma had no jurisdiction to prosecute McGirt for his offenses. The federal government had jurisdiction to do so under the Major Crimes Act. 140 S. Ct. at 2478.1

III. Defendant’s Arguments

Defendant contends that the McGirt decision

changed Indian country jurisprudence by focusing more

on the statutory text to determine “whether Congress’s

words broke a treaty promise.” Def.’s Reply 2 (citing

Oneida Nation v. Village of Hobart, 568 F.3d 664, 668

(7th Cir. 2020)), ECF No. 85. Oneida Nation, however,

says nothing about federal criminal jurisdiction under

the AC A or the ICCA, but rather addresses whether a

municipal government could require the Oneida Nation

to pay a permit fee for a tribal festival.

McGirt focused on whether Congress expressly

acted to reduce or eliminate the Creek Reservation.

The Court did not question whether federal jurisdiction

existed under the MCA, and there was no reason for

the Court to address the ICCA. Nothing in McGirt

casts doubt on the ICCA’s validity or its application to

Indian country.

Defendant contends that McGirt in effect “holds

the government to promises to Indian tribes absent express Congressional revocation of the promises.” Def.’s

Reply 9. However, although the ICCA may, like the

MCA, be a breach of government promises to give

1

The government states that after the Court’s decision setting aside McGirt’s Oklahoma convictions, McGirt was convicted in

federal court for aggravated sexual abuse and abusive sexual contact, apparently based on the same conduct that led to his convictions in state court. Gov’t Resp. 7 & n.2, ECF No. 84.

14a

tribes complete sovereignty over their members, Congress has expressly authorized federal jurisdiction over

certain crimes committed by Indians in Indian country.

Defendant also argues that although the ICCA and

MCA do mention Indian country, the ACA does not.

However, both the majority and the concurring opinions in Smith addressed the ACA’s failure to mention

Indian country. The majority opinion in Smith concluded that the wording of the ACA itself, considered

with relevant caselaw, supports the ACA’s application

to Indian country. 925 F.3d at 418-21. In contrast, the

concurring opinion concluded that the ACA applied to

Indian country only through the ICCA’s incorporation

of ‘“the general laws of the United States,’” but “not on

[the ACA’s] own terms.” See Smith, 925 F.3d at 423

(Fisher, J., concurring) (quoting ICCA, 18 U.S.C.

§ 1152). Regardless of which theory for applying the

ACA to Indian country is correct, I conclude that the

Ninth Circuit’s decision in Smith remains good law after McGirt. Because Defendant’s motion raises only

legal issues, no evidentiary hearing is needed.

CONCLUSION

Defendant’s Motion to Vacate, Set Aside or Correct

his Sentence under 28 U.S.C. § 2255, ECF No. 78, is

DENIED. Defendant is issued a certificate of appealability because he “has made a substantial showing of

the denial of a constitutional right,” 28 U.S.C.

§ 2253(c)(2), as to the jurisdictional issue.

IT IS SO ORDERED.

DATED January 13, 2021.

[signature]

Robert E. Jones

United States District Judge

15a

APPENDIX C

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 17-30248

D.C. No. 3:16-cr-00436-BR-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHNNY ELLERY SMITH,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Oregon

Anna J. Brown, District Judge, Presiding

Argued and Submitted October 10, 2018

Portland, Oregon

Filed May 28, 2019

Before: Raymond C. Fisher, Richard R. Clifton, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan;

Concurrence by Judge Fisher

OPINION

CALLAHAN, Circuit Judge:

16a

Defendant-appellant 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.

We do 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.

I.

Smith is an enrolled Indian member of the Confederated Tribes of Warm Springs. In September 2016, Smith

17a

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 reasons.

Less 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.

Smith 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 incidents.

Smith 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 issue.

18a

II.

We review de novo jurisdictional issues over criminal offenses. United States v. Begay, 42 F.3d 486, 497

(9th Cir. 1994).

Smith’s 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 the ACA applies

to Indian country is Williams, wherein the Supreme

Court stated:

It is not disputed that this Indian reservation is

“reserved or acquired for the use of the United

States, and under the exclusive or concurrent

jurisdiction thereof,” or that it is “Indian country” within the meaning of [the ICCA]. This

means that many sections of the Federal Criminal Code apply to the reservation, including …

the Assimilative Crimes Act … .

327 U.S. at 713 (footnotes omitted) (quoting 18 U.S.C.

§451, the predecessor to 18 U.S.C. § 7). In Marcyes, we

relied on Williams in rejecting an argument raised by

amicus curiae against the applicability of the ACA to

Indian country, which was virtually identical to the

challenge Smith raises here:

Amicus’ argument that the [Supreme Court in

Williams] merely assumed [the ACA’s] applicability without deciding the question is belied by the court’s own words … .

We would also note that the Williams court’s

ultimate decision … would never had been

reached had the court felt that the A.C.A. did

not apply to any crime committed upon Indian

19a

lands. Our own review of the language of 18

U.S.C. § 13 and 18 U.S.C. §1152 convinces us

that the district court was correct in holding

that the A.C.A., by its own terms and through

§ 1152, is applicable to Indian country.

557 F.2d at 1365 n.1 (emphasis added). In several other

decisions, we have upheld or asserted the applicability of

the ACA in Indian country.1 Other circuits are in accord.2

These prior decisions indicate that the ACA applies

to Indian country. Smith alleges, however, that the jurisdictional question was never directly at issue in those

1

E.g., Acunia v. United States, 404 F.2d 140, 142 (9th Cir.

1968) (“[T]he [ACA] is among the general laws which the first paragraph of [the ICCA] extends to Indian territory.”); United States

v. Kaufman, 862 F.2d 236, 237-38 (9th Cir. 1988) (per curiam) (upholding appellant’s conviction under the ACA for pointing a firearm at another person in violation of an Oregon statute while “at

the Chemawa Indian School construction site, which is within a

federal enclave”); United States v. Errol D., Jr., 292 F.3d 1159,

1164 (9th Cir. 2002) (“[T]he government could have charged Errol

D. under [the ICCA], which, by extending the [ACA] to Indian

territory, would have rendered him criminally liable for a ‘like offense’ and a ‘like punishment’ under state law.”); United States v.

Bare, 806 F.3d 1011, 1016-17 (9th Cir. 2015) (holding that, under

the ICCA, appellant “is subject to punishment in Indian Country—by the United States—which incorporates in the federal offense the elements of Arizona’s disorderly conduct statute under

the ACA”).

2

E.g., United States v. Sosseur, 181 F.2d 873, 874 (7th Cir.

1950) (citing Williams to hold that “the [ACA] … has been conclusively held applicable to the Indian country”); United States

v. Thunder Hawk, 127 F.3d 705, 707 (8th Cir. 1997) (stating that

the ACA “is one of the federal enclave laws made applicable to

Indian country by the ICCA”); United States v. Pino, 606 F.2d 908,

915 (10th Cir. 1979) (concluding that the ACA “assimilates state

traffic laws and others into federal enclave law” and “reaches activities on Indian reservations”).

20a

other cases but merely assumed, such that we are not

bound by those decisions. We do not need to address

that contention. Because the jurisdictional question is

now directly before us, we expressly hold that the ACA

applies to Indian country, based both on precedent and

our own analysis of the ACA and the ICCA.

A. The Assimilative Crimes Act

As with all questions of statutory interpretation,

we turn first to the text of the statute. The ACA states

in part:

Whoever within or upon any of the places now

existing or hereafter reserved or acquired as

provided in [18 U.S.C. § 7] … is guilty of any

act or omission which, although not made punishable by any enactment of Congress, would

be punishable if committed or omitted within

the jurisdiction of the State, Territory, Possession, or District in which such place is situated,

by the laws thereof in force at the time of such

act or omission, shall be guilty of a like offense

and subject to a like punishment.

18 U.S.C. § 13(a). The plain text of the ACA lacks any

express reference to Indians or Indian country. The

statute on its face also contains no limitation based on

the status of the defendant, to include whether he is

Indian or non-Indian. Instead, it begins with the allencompassing term “[w]hoever” in regards to whom it

might apply—so long as this person commits the offense “within or upon any of the places now existing or

hereafter reserved or acquired as provided in [18

U.S.C. § 7].” Id.

Hence, the jurisdictional “hook” of the ACA is the

situs of the offense, which hinges on the ACA’s refer-

21a

ence to 18 U.S.C. § 7. This federal criminal statute defines areas within the “special maritime and territorial

jurisdiction of the United States,” 18 U.S.C. § 7, which

are often referred to as “federal enclaves.” See United

States v. Markiewicz, 978 F.2d 786, 797 (2d Cir. 1992)

(“[F]ederal enclave laws are a group of statutes that

permits the federal courts to serve as a forum for the

prosecution of certain crimes when they occur within

the ‘[s]pecial maritime and territorial jurisdiction of the

United States’, 18 U.S.C. § 7; this jurisdiction includes

federal land, and property such as federal courthouses

and military bases.”) (alteration in original). If an offense is committed in a federal enclave and there is no

federal statute defining that offense (i.e., an offense

“not made punishable by any enactment of Congress”),

the federal government may nonetheless prosecute the

offense through the ACA by assimilating a “like offense” and “like punishment” from the law of the state

in which the federal enclave is situated. See Lewis

v. United States, 523 U.S. 155, 160 (1998) (“The ACA’s

basic purpose is one of borrowing state law to fill gaps

in the federal criminal law that applies on federal enclaves.”).

Our first question then is whether “Indian country”—or more specifically, the Warm Springs Indian

Reservation where Smith’s offenses occurred—

qualifies as one of these “places … reserved or acquired

as provided in [18 U.S.C. § 7].” See 18 U.S.C. § 13(a).

Smith contends that Indian country does not fall within

the meaning of 18 U.S.C. § 7 because the section lacks

any reference to Indian country or Indian reservations.

Despite the apparent absence of the term “Indian”

however, 18 U.S.C. § 7(3) defines federal territorial jurisdiction to include “[a]ny lands reserved or acquired

for the use of the United States, and under the exclu-

22a

sive or concurrent jurisdiction thereof.” Based on a

plain reading of this text, any Indian reservation or

land that is (1) “reserved or acquired for the use of the

United States,” and (2) “under the exclusive or concurrent jurisdiction thereof” falls within the ambit of

18 U.S.C. § 7.

Turning first to whether Indian country is “reserved or acquired for the use of the United States,” we

have stated that the meaning of this phrase in section

7(3) “is plain enough. Courts have demonstrated their

faith in the words’ clarity by skipping over them without explication.” United States v. Corey, 232 F.3d 1166,

1176 (9th Cir. 2000). In cases such as Williams, Marcyes, and others, courts have readily accepted that Indian

reservations are “reserved or acquired for the use of

the United States” within the meaning of 18 U.S.C.

§ 7(3) without much discussion.

See, e.g., Guith

v. United States, 230 F.2d 481, 482 (9th Cir. 1956)

(“[A]ppellant’s ranch, being located in ‘Indian country’,

is on ‘lands reserved … for the use of the United

States, and under exclusive … jurisdiction thereof’,

within 18 U.S.C. § 7(3).”); Pino, 606 F.2d at 915 (“The

[ACA] reaches activities on Indian reservations since

such areas are ‘reserved or acquired for the use of the

United States, and under the exclusive or concurrent

jurisdiction thereof.’”).

Smith argues that tribal lands were not “reserved or

acquired for the use of the United States” by referencing

two specific treaties between the federal government

and Indian tribes in Oregon and Washington that

“cede[d] certain lands to the United States while reserving lands for ‘exclusive use’ by tribes.” But for lands to

be “reserved or acquired for the use of the United

States” under 18 U.S.C. § 7(3), “[t]here is no requirement

23a

that the United States be an owner, or even an occupant,

so long as the land has been set aside for the use of an

instrumentality of the federal government.” Corey, 232

F.3d at 1177. In the 1850s, when “the federal government began frequently to reserve public lands from entry for Indian use,” “the modern meaning of Indian reservation emerged, referring to land set aside under federal protection for the residence or use of tribal Indians.”

Cohen’s Handbook of Federal Indian Law § 3.04 at 190

(Nell Jessup Newton ed., 2017) (citations omitted). “This

use of the term ‘reservation’ from public land law soon

merged with the treaty use of the word to form a single

definition describing federally protected Indian tribal

lands without depending on any particular source.” Id. at

191. Contrary to Smith’s claim, the treaties he cites provide specific examples of how Indian reservations were

“reserved or acquired” by the United States for the federal purpose of protecting Indian tribes, which traditionally were considered “wards of the nation” under federal

law. See generally Donnelly v. United States, 228 U.S.

243 (1913); United States v. Kagama, 118 U.S. 375 (1886);

Worcester v. Georgia, 31 U.S. 515 (1832).

Second, we turn to whether Indian country falls

“under the exclusive or concurrent jurisdiction” of the

United States. This phrase in section 7(3) “refers to

‘legislative jurisdiction,’” which means “the state’s authority ‘to make its law applicable to the activities, relations, or status of persons’” within a territory. Corey,

232 F.3d at 1177-78 (quoting the Restatement (Third) of

the Foreign Relations Law of the United States § 401

(1987)). Given this, the United States’ jurisdiction over

Indian country—if measured by its authority to legislate with regard to Indian territories and the activities

within—seems apparent. The Supreme Court has long

recognized Congress’ “broad general powers” under

24a

the Constitution to regulate with respect to Indian affairs—”powers that [have been] consistently described

as ‘plenary and exclusive.’” United States v. Lara, 541

U.S. 193, 200 (2004) (quoting Washington v. Confederated Bands & Tribes of Yakima Nation, 439 U.S. 463,

470-71 (1979); Negonsott v. Samuels, 507 U.S. 99, 103

(1993); United States v. Wheeler, 435 U.S. 313, 323

(1978)).

The history of 18 U.S.C. § 7 and other statutes by

which Congress defined Indian country and asserted

federal criminal jurisdiction over newly acquired territories, to include tribal lands, also supports this view.

“As the United States acquired new possessions, Congress extended federal criminal jurisdiction with the

boundaries of the young republic[,]” and “did so by reference” to federal criminal jurisdiction in federal enclaves. Corey, 232 F.3d at 1174, 1175. The original

Federal Crimes Act of 1790 referred to federal enclaves

as “any fort, arsenal, dock-yard, magazine, or … any

other place or district of country, under the sole and

exclusive jurisdiction of the United States,” 1 Stat. 112,

§ 3 (1790), and the Indian Boundaries Act of 18173 and

3

Titled “An Act to Provide for the Punishment of Crimes and

Offences Committed Within the Indian Boundaries,” the statute

provided for the punishment of crimes committed by “any Indian

or other person or persons … within the United States, and within

any town, district, or territory, belonging to any nation or nations,

tribe or tribes, of Indians, commit any crime, offence, or misdemeanor, which if committed in any place or district of country under the sole and exclusive jurisdiction of the United States, would,

by the laws of the United States, be punished with death, or any

other punishment … .” Act of March 3, 1917, ch. 92, § 1, 3 Stat. 383

(1817). Section 2 of the act gave federal courts jurisdiction to hear

and try these offenses, with the exception of “any offence committed by one Indian against another, within any Indian boundary.”

Id. § 2, 3 Stat. 383.

25a

the Indian Intercourse Act of 18344 similarly referred

to crimes committed in places “under the sole and exclusive jurisdiction of the United States.” As the statutory definition of federal enclave jurisdiction evolved

into what is now the ACA in 18 U.S.C. §§ 7 and 13,5 the

language used to describe and define federal criminal

definition of federal jurisdiction in Indian country was

likewise updated. When Congress enacted the ACA

and the ICCA as part of the revised and consolidated

federal criminal code in 1948, it also codified the definition of Indian country as “all land within the limits of

any Indian reservation under the jurisdiction of the

United States Government.” 18 U.S.C. § 1151(a) (emphasis added). In that sense, perhaps the most direct

indicator that Indian country, as currently defined in

4

Section 25 provided that the “punishment of crimes committed within any place within the sole and exclusive jurisdiction of

the United States, shall be in force in the Indian country” except

for “crimes committed by one Indian against the person or property of another Indian.” See An Act to Regulate Trade and Intercourse with the Indian Tribes and to Preserve Peace on the Frontiers, ch. 161, § 25, 4 Stat. 733 (1834).

5

In the Federal Crimes Act of 1825, Congress broadened the

definition of federal enclaves, see An Act More Effectually to Provide for the Punishment of Certain Crimes against the United

States and for Other Purposes, ch. 65, § 1, 4 Stat. 115 (1825), and

also enacted the provision that “provided the basis from which has

grown the Assimilative Crimes Act now before us.” See id. § 3, 4

Stat. 115; United States v. Sharpnack, 355 U.S. 286, 290 (1958). In

1909, Congress consolidated various criminal jurisdictional provisions into a single statute, wherein its definition of federal enclaves

included “any lands reserved or acquired for the exclusive use of

the United States, and under the exclusive jurisdiction thereof… .”

See Act of March 4, 1909. ch. 321, § 272, 35 Stat. 1088, 1143. This

precursor to 18 U.S.C. § 7(3) was expanded in 1940 to include land

over which the federal government had “concurrent” jurisdiction.

See Act of June 11, 1940, ch. 323, 54 Stat. 304 (1940).

26a

the federal criminal code, falls within the “jurisdiction

of the United States” comes from the express language

of the statutory definition itself.

In light of the above, we hold that the ACA applies

to Indian country by virtue of 18 U.S.C. § 7.

B. The Indian Country Crimes Act

Our review of the ICCA (sometimes referred to as

the General Crimes Act) further supports the applicability of the ACA to Indian country. The ICCA states:

Except as otherwise expressly provided by

law, the general laws of the United States as to

the punishment of offenses committed in any

place within the sole and exclusive jurisdiction

of the United States, except the District of Columbia, shall extend to the Indian country.

This section shall not extend to offenses committed by one Indian against the person or

property of another Indian, nor to any Indian

committing any offense in the Indian country

who has been punished by the local law of the

tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes

respectively.

18 U.S.C. § 1152.

Courts have repeatedly interpreted the “general

laws of the United States” in the ICCA to refer to “federal enclave laws,” meaning those laws passed by the

federal government in exercise of its police powers in

areas of exclusive or concurrent federal jurisdiction as

defined in 18 U.S.C. § 7. E.g., Begay, 42 F.3d at 498

(“[U]nder § 1152, Congress mandated that the ‘general

27a

laws’ of the United States applicable in federal enclaves, such as national parks, military bases, veterans’

hospitals, federal buildings, and federal prisons, apply

in Indian country … .”); United States v. Strong, 778

F.2d 1393, 1396 (9th Cir. 1985) (“[The ICCA] applies

only to ‘federal enclave law’—law in which the situs of

the offense is an element of the crime.”); United States

v. Torres, 733 F.2d 449, 454 (7th Cir. 1984) (“In order to

prosecute under 18 U.S.C. § 1152, the Government

must prove, as a jurisdictional requisite, that the crime

was in violation of a Federal enclave law … .”).

The ACA, as a federal enclave law, thus also applies

to Indian country by operation of the ICCA. Many prior cases uphold the applicability of an ACA violation in

Indian country on this basis. E.g., United States v. Burland, 441 F.2d 1199, 1200 (9th Cir. 1971) (finding “[o]ne

of the ‘general laws’ referred to [in the ICCA] is the

[ACA],” which “makes the Montana statute that prohibits passing forged checks … part of the federal law applicable on the Fort Peck reservation”); Acunia, 404

F.2d at 142 (holding “the [ACA] is among the general

laws which the first paragraph of section 1152 extends

to Indian territory”); Thunder Hawk, 127 F.3d at 707

(stating the ACA “is one of the federal enclave laws

made applicable to Indian country by the ICCA”).

Accordingly, we hold that the ACA applies to Indian country, by operation of both 18 U.S.C. § 7 and 18

U.S.C. § 1152.

III.

Having recognized the general applicability of the

ACA to Indian country, we turn next to whether the

ACA is subject to any limitations when applied to Indian country, and if so, whether those limitations precluded jurisdiction in Smith’s case. Smith argues that

28a

even if the ACA may generally apply to Indian country,

the federal government cannot invoke the ACA to

prosecute a state crime that is already defined under

tribal law. To do so, Smith alleges, would defeat the

“gap-filling” purpose of the ACA, since there is no gap

in criminal jurisdiction for the ACA to fill. This argument misconstrues the purpose of the ACA, which is

aimed at “gaps in the federal criminal law”—not gaps in

overall criminal jurisdiction—and simply allows the

federal government to adopt state criminal law in order

to prosecute violations on federal enclaves that are not

specifically defined in the federal criminal code.

Nonetheless, we agree that the ACA may have a

more limited reach in Indian country than it would in

other federal enclaves, and, in particular, may be subject to the exceptions in the ICCA. In addressing this

question, we recognize that our holdings above may

present a seeming tension. If, on one hand, the ACA

extends to Indian country through the ICCA, then naturally the ACA would be subject to the exceptions of

the ICCA; but if the ACA applies to Indian country

through 18 U.S.C. § 7, a provision independent of the

ICCA, then shouldn’t we reasonably find that the ACA

can be invoked in Indian country without any regard to

the ICCA’s exceptions?

Our statutory review leads us to conclude that the

ACA, when invoked in Indian country, is subject to the

exceptions set forth in the ICCA. Several principles

inform this determination. First, in our interpretation

of the applicability of the ACA to Indian country, we

are mindful that “the standard principles of statutory

construction do not have their usual force in cases involving Indian law.” Montana v. Blackfeet Tribe, 471

U.S. 759, 766 (1985). The Supreme Court has “consistently admonished that federal statutes and regulations

29a

relating to tribes and tribal activities must be ‘construed generously in order to comport with … traditional notions of [Indian] sovereignty and with the federal policy of encouraging tribal independence.’”

Ramah Navajo Sch. Bd. v. Bureau of Revenue, 458

U.S. 832, 846 (1982) (alterations in original); see also

Bryan v. Itasca Cty., 426 U.S. 373, 392 (1976) (“[W]e

must be guided by that ‘eminently sound and vital canon’ that ‘statutes passed for the benefit of dependent

Indian tribes … are to be liberally construed, doubtful

expressions being resolved in favor of the Indians.’”)

(citation omitted).

Second, we recognize that Congress’ intent for the

ACA to apply generally to federal enclaves within the

meaning of 18 U.S.C. § 7 is not necessarily at tension

with—or exclusive of—Congress’ intent or ability to

expand, limit, or otherwise modify the precise contours

of the ACA’s reach in specific types of federal enclaves

by other statutes. Given that the ICCA is one of the

primary laws enacted by Congress to “balance the sovereignty interest of Indian tribes and the United States’

interest in punishing offenses committed in Indian country,” Begay, 42 F.3d at 498, we find that Congress intended to impose its express limitations on all federal

enclave laws in Indian country, including the ACA.

This conclusion is consistent with precedent and with

our view that the ACA extends to Indian country by

virtue of the ICCA. See Acunia, 404 F.2d at 142 (“[I]t is

clear that Congress did not intend that the [ACA]

should apply to situations wherein, under the second

paragraph of 18 U.S.C. § 1152, the extension to Indian

country of the general laws of the United States for federal enclaves is specifically removed.”); United States v.

Welch, 822 F.2d 460, 463 (4th Cir. 1987) (“The [ACA]

does not apply to crimes committed by one Indian

30a

against another Indian in Indian country … .”); United

States v. Wadena, 152 F.3d 831, 840 n.13 (8th Cir. 1998)

(“[U]nder the Assimilative Crimes Act, the exception

involving Indian-against-Indian crimes would still apply.” (citing Thunder Hawk, 127 F.3d at 706-08)).

Thus, the federal government may not invoke the

ACA to prosecute cases in Indian country that the ICCA specifically excepts, namely: (1) “offenses committed by one Indian against the person 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.” 18 U.S.C. § 1152. Here, these limitations did not

prohibit the federal government’s prosecution of Smith.

On this point, however, amicus argues that the Indian-on-Indian exception in the ICCA prohibits application of the ACA to “victimless” crimes in Indian country,

which would include the Oregon crime of fleeing and

eluding police in this case. Amicus cites United States v.

Quiver, 241 U.S. 602 (1916), where the Supreme Court

dismissed a federal charge for adultery between two Indians in Indian country as barred by the ICCA’s Indianon-Indian exception. The government had argued that

the ICCA exception did not apply because adultery “is a

voluntary act on the part of both participants, and,

strictly speaking, not an offense against the person of

either.” Id. at 605. The Court rejected that argument in

light of “the policy reflected by the legislation of Congress and its administration for many years, that the relations of the Indians among themselves—the conduct of

one toward another—is to be controlled by the customs

and laws of the tribe, save when Congress expressly or

clearly directs otherwise[.]” Id. at 605-06.

31a

We do not read Quiver’s emphasis on Congress’

policy from “an early period” to “permit the personal

and domestic relations of the Indians with each other to

be regulated … according to their tribal customs and

laws” to mean that the ICCA’s Indian-on-Indian exception prohibits federal prosecution of any “victimless”

crimes. Id. at 603-04. Federal policy towards the exercise of tribal sovereignty has evolved and fluctuated

over time, particularly since Quiver was decided in

1916. See United States v. Lara, 541 U.S. 193, 202

(2004) (“From the Nation’s beginning … the Government’s Indian policies … of necessity would fluctuate

dramatically as the needs of the Nation and those of the

tribes changed over time. And Congress has in fact authorized at different times very different Indian policies. … Such major policy changes inevitably involve

major changes in the metes and bounds of tribal sovereignty.”) (citation omitted). The laws passed by Congress to effectuate its policies on criminal jurisdiction in

Indian country have never placed any explicit emphasis

on the “victimless” nature of a crime.

The Eighth Circuit, in considering similar challenges to a federal prosecution of an Indian for driving under the influence in Indian country, reached the same

conclusion. See Thunder Hawk, 127 F.3d at 709 (“We

do not believe … that Quiver stands for the proposition

that the ‘Indian versus Indian’ exception applies to

every ‘victimless’ crime involving Indians.”). As the

Eighth Circuit reasoned:

Quiver involved domestic relations, an area

traditionally left to tribal self-government. In

such a case, including “victimless” crimes within the “Indian versus Indian” exception preserves the tribe’s exclusive jurisdiction over

domestic matters. Here, in contrast, the prohi-

32a

bition of and punishment for driving under the

influence has not traditionally been within the

exclusive jurisdiction of Indian tribes. Rather,

the ACA “assimilates state traffic laws and

others into federal enclave law in order ‘to fill

in the gaps in the Federal Criminal Code,

where no action of Congress has been taken to

define the missing offense.’” Moreover, the offense of driving under the influence is more

akin to an offense against the public at large,

both Indian and non-Indian, rather than a true

“victimless” crime.

127 F.3d at 709 (citations omitted). Likewise, Smith’s

offense of fleeing and eluding the police is a public safety offense, rather than a true “victimless” crime, and

falls well outside the area of domestic relations “traditionally left to tribal self-government.” Id. Thus, we

join the Eighth Circuit’s view 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.

Smith also asserts that because he could have been

prosecuted in tribal court for the same conduct, his

prosecution by the federal government under the ACA

“was a needless and unlawful intrusion into tribal sovereignty.” Smith provides no legal authority for the

proposition that the federal government may not prosecute where the tribe also has the authority to do so,

nor do we find it supported by the text or purpose of

the ACA or the ICCA. The second exception in the

ICCA plainly refers to “any Indian … who has been

punished by the local law of the tribe,” not any Indian

who could be punished by the law of the tribe.

18 U.S.C. § 1152 (emphasis added). By excluding from

federal prosecution only Indian defendants who have

33a

already been punished by their tribe, this provision aptly strikes at the “balance” that Congress sought to

achieve with the ICCA between “the sovereignty interest of Indian tribes and the United States’ interest

in punishing offenses committed in Indian country.”

Begay, 42 F.3d at 498. It both defers to tribal criminal

proceedings and allows for federal prosecution where a

tribe might choose not to exercise its authority.

We also note that, in some instances, even the dual

prosecution by both federal and tribal authorities for

the same conduct has been upheld as constitutionally

permissible. See Wheeler, 435 U.S. at 314 (holding that

“the prosecution of an Indian in a federal district court

under the Major Crimes Act, 18 U.S.C. § 1153, when he

has previously been convicted in a tribal court of a lesser included offense arising out of the same incident” is

not barred by the Double Jeopardy Clause). Contrary

to Smith’s contention then, the federal prosecution in

this case was not an “unlawful intrusion into tribal sovereignty,” but rather a permissible exercise of concurrent jurisdictional authority often held by different

sovereigns in Indian country. See Duro v. Reina, 495

U.S. 676, 680 n.1 (1990) (explaining how jurisdiction in

Indian country “is governed by a complex patchwork of

federal, state, and tribal law”). Given that none of the

ICCA’s exceptions apply in this case, the district court

had jurisdiction over Smith’s offenses under the ACA.

IV.

Finally, we reject Smith’s claim that the MCA,

18 U.S.C. § 1153, precludes the federal 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.

34a

The MCA provides for federal jurisdiction over a

list of enumerated crimes committed by Indians

“against the person or property of another Indian or

other person” within Indian country.

18 U.S.C.

§ 1153(a). In Begay, we already rejected the argument

“that Indians may not be charged for any criminal conduct beyond those crimes enumerated in [the MCA].”

42 F.3d at 498 (emphasis in original). Similarly, neither

the text nor history of these statutes supports Smith’s

assertion that the MCA limits federal jurisdiction over

any “violations of state law” in Indian country outside

those listed in that statute. The text of the MCA lacks

any express reference to, much less any limitation of,

other laws—such as the ICCA or the ACA—that establish federal authority to prosecute crimes in Indian

country.

Furthermore, the MCA was enacted as “a direct

response” to the Supreme Court’s interpretation of the

ICCA, or more accurately, its predecessor in Revised

Statutes §§ 2145 and 2146.6 Keeble v. United States,

412 U.S. 205, 209 (1973) (“The Major Crimes Act was

passed by Congress in direct response to the decision of

this Court in Ex parte Crow Dog, 109 U.S. 556 (1883) …

[where we held] that a federal court lacked jurisdiction

to try an Indian for the murder of another Indian … in

Indian country.”). “The prompt congressional response—conferring jurisdiction on the federal courts to

punish certain offenses—reflected a view that tribal

remedies were either nonexistent or incompatible with

6

Revised Statutes §§ 2145 and 2146, later codified in 25

U.S.C. §§ 217 and 218, were the direct progenitor for the ICCA

enacted in 1948. Section 2145 asserted federal criminal jurisdiction

over violations of the “general laws of the United States” in Indian

country, while § 2146 provided for certain exceptions that were

virtually identical to the exceptions in the current ICCA.

35a

principles that Congress thought should be controlling.” Id. at 210. Because the ICCA did not “extend to

offenses committed by an Indian against another Indian, nor to any Indian … who has been punished for that

act by the local law of the tribe,” 18 U.S.C. § 1152, the

MCA “partially abrogated [this exception in the ICCA]

by creating federal jurisdiction over fourteen enumerated crimes committed by Indians against Indians or

any other person in Indian country.” United States v.

Male Juvenile, 280 F.3d 1008, 1013, 1019 (9th Cir. 2002)

(“The MCA was enacted after the [ICCA] … as an exception to or abrogation of the [ICCA].”); Donnelly, 228

U.S. at 269-70 (explaining that the MCA of 1885 did not

repeal the entire ICCA predecessor but instead “manifestly repeal[ed] in part the limitation that was imposed” by the specific exceptions).

Thus, rather than limit federal authority over

crimes by Indians in Indian country, the MCA extended it to specific “major crimes,” thereby partially withdrawing the exclusive authority of tribes over Indianon-Indian crimes previously afforded by the ICCA.

The MCA did not otherwise affect the federal criminal

jurisdiction that was already established by the ICCA

for violations of the ACA and other federal enclave

laws in Indian country. For these reasons, the MCA

does not preclude the application of the ACA to Smith’s

offenses.

V.

We hold that the Assimilative Crimes Act applies

to crimes in Indian country, and that neither the Indian

Country Crimes Act nor the Major Crimes Act precluded the federal government from exercising its jurisdiction to prosecute Smith for his violations of Oregon Revised Statutes § 811.540(1) under the Assimila-

36a

tive Crimes Act. We uphold the district court’s denial

of the motion to dismiss for lack of jurisdiction and AFFIRM Smith’s conviction.

_________________________________________________

FISHER, Circuit Judge, concurring:

I agree with the majority that the Assimilated

Crimes Act (ACA) applies to “Indian country” subject

to the Indian Country Crimes Act (ICCA)’s three exceptions. See 18 U.S.C. § 1151 (defining “Indian country”); id. § 1152 (providing that the ICCA “shall not extend [1] to offenses committed by one Indian against

the person or property of another Indian, nor [2] to any

Indian committing any offense in the Indian country

who has been punished by the local law of the tribe, or

[3] to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively”).

There are two ways to arrive at that result. One is

to hold that the ACA applies to Indian country only

through the ICCA, not on its own terms—i.e., that the

ACA is part of “the general laws of the United States”

under the ICCA, id. § 1152, but Indian country is not

among the “lands reserved or acquired for the use of

the United States” under the ACA, id. §§ 7(3), 13. A

second way to arrive at this result (the one adopted by

the majority) is to hold that the ACA applies to Indian

country on its own terms—i.e., that Indian country is

among the “lands reserved or acquired for the use of

the United States” under § 7(3) – but that Congress

nonetheless intended the ACA’s application to Indian

country to be subject to the ICCA’s three exceptions.

37a

I have some reservations about the majority’s chosen approach. See Cohen’s Handbook of Federal Indian Law § 9.02 n.19 (Nell Jessup Newton ed., 2017) (“Only one court stated that the ACA applied of its own

force within Indian country, in a case in which the point

was not in issue. United States v. Marcyes, 557 F.2d

1361, 1365 n.1 (9th Cir. 1977). The statement is inconsistent with the policy of leaving tribes free of general

federal criminal laws, except as expressly provided.”).

Under either approach, however, the bottom line is the

same: the ACA applies to Indian country subject to the

ICCA’s three exceptions. Accordingly, I concur.

39a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

No. 3:16-CR-00436-BR

UNITED STATES OF AMERICA,

Plaintiff,

v.

JOHNNY ELLERY SMITH,

Defendant.

Filed August 15, 2017

OPINION AND ORDER

BROWN, Judge.

This matter comes before the Court on Defendant

Johnny Ellery Smith’s Motion (#12) to Dismiss the Indictment for lack of jurisdiction.

For the reasons that follow, the Court DENIES

Defendant’s Motion.

BACKGROUND

On November 1, 2016, Defendant, a Native American, was indicted in this Court on two counts of Fleeing

or Attempting to Elude a Police Officer in violation of

Oregon Revised Statutes § 811.540(1) while on the

Warm Springs Indian Reservation on September

2, 2016, and October 23, 2016. The Indictment is

brought pursuant to the Assimilative Crimes Act

(ACA), 18 U.S.C. § 13, and the Indian Country Crimes

40a

Acts (ICCA), 18 U.S.C. § 1152 (also sometimes referred

to as the General Crimes Act (GCA)). Defendant was

not charged or prosecuted in any state or tribal court

for these alleged crimes.

On May 23, 2017, Defendant filed a Motion to Dismiss. On August 10, 2017, the Court heard oral argument and took Defendant’s Motion under advisement.

STATUTORY AUTHORITY

The following statutory authorities govern the issues raised by Defendant.

The ACA provides:

Whoever within or upon any of the places now

existing or hereafter reserved or acquired as

provided in section 7 of this title, or on, above,

or below any portion of the territorial sea of the

United States not within the jurisdiction of any

State, Commonwealth, territory, possession, or

district is guilty of any act or omission which,

although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the

State, Territory, Possession, or District in

which such place is situated, by the laws thereof in force at the time of such act or omission,

shall be guilty of a like offense and subject to a

like punishment.

18 U.S.C. § 13(a).

The ICCA provides:

Except as otherwise expressly provided by

law, the general laws of the United States as to

the punishment of offenses committed in any

place within the sole and exclusive jurisdiction

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of the United States, except the District of Columbia, shall extend to the Indian country.

This section shall not extend to offenses committed by one Indian against the person or

property of another Indian, nor to any Indian

committing any offense in the Indian country

who has been punished by the local law of the

tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes

respectively.

18 U.S.C. § 1152.

The Major Crimes Act (MCA) provides:

(a) Any 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, burglary,

robbery, and a felony under section 661 of this

title within the Indian country, shall be subject

to the same law and penalties as all other persons committing any of the above offenses,

within the exclusive jurisdiction of the United

States.

(b) Any offense referred to in subsection (a) of

this section that is not defined and punished by

Federal law in force within the exclusive jurisdiction of the United States shall be defined

and punished in accordance with the laws of the

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State in which such offense was committed as

are in force at the time of such offense.

18 U.S.C. § 1153.

DISCUSSION

Defendant contends this Court does not have federal jurisdiction to prosecute him on the grounds that

(1) the ACA on its face does not apply to Indian country; (2) the MCA precludes application of the ACA to

crimes in Indian country that are not major crimes; and

(3) even if the ACA applies to Indian country, it does

not apply to “victimless” crimes or any other crime that

does not involve a non-Native American.

The government contends this Court has federal

jurisdiction over this matter on the grounds that (1) the

crimes were committed by a Native American in Indian

country; (2) the assimilated crime of Fleeing or Attempting to Elude Police Officers does not fall within

one of the three exceptions articulated in the ICCA;

and (3) Oregon law is properly assimilated through the

ACA because there is not any federal law that prohibits

Fleeing or Attempting to Elude Police Officers.

I.

Assimilative Crimes Act (ACA) is not ambiguous.

A. The Parties’ Arguments

Defendant contends the government lacks jurisdiction to prosecute him for the stated charges because

the ACA on its face does not apply to Indian country.

In addition, even if the ACA were ambiguous as to this

issue, Defendant contends Congress has not clearly expressed an intent to apply the ACA to Indian country

through the ICCA, and ambiguous statutes must be

construed in favor of preserving tribal sovereignty.

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Defendant also argues tribal lands are not “acquired for the use of the United States” pursuant to

18 U.S.C. § 7(3), which defines the “places” where the

ACA applies. Moreover, Defendant argues if the ACA

on its face applied to Indian country, the ICCA extending federal enclave crimes to Indian country would be

surplusage.

Finally, Defendant contends Congress did not intend to give states legislative authority under the ACA

over crimes committed by Native Americans in Indian

country. Defendant argues Congress passed the ACA

out of concern that minor crimes committed in federal

enclaves were going unpunished because the federal

criminal code only covered a few major crimes and no

other sovereign had jurisdiction to punish offenses in

those places. In particular, Defendant asserted at oral

argument the ACA does not apply to Defendant’s alleged crimes because the ACA only applies when there

is not any pertinent law, and there is an applicable tribal law in these circumstances.

In response the government contends the ICCA

gives the government the authority to prosecute the

“general laws of the United States” within Indian country, and the ACA is a general law of the United States.

Moreover, the government emphasized at oral argument its position that the ACA allows assimilation of

state law when there is a “gap” in existing federal law

and the existence of a similar tribal law is irrelevant.

B. Analysis

Principles of federal Indian law require a clear

statement of congressional intent to intrude on a tribe’s

sovereign rights to regulate its own domestic affairs.

Although tribes do not enjoy full territorial sovereignty, they retain those aspects of sovereignty that are

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“needed to control their own internal relations, and to

preserve their own unique customs and social order.”

Duro v. Reina, 495 U.S. 676, 685-86 (1990). Criminal

laws are an expression of social values and community

values, and tribes have not been divested of the authority to promulgate and to punish criminal offenses committed by their tribal members. Accordingly, federal

statutes that purport to intrude into tribal sovereignty

must be narrowly construed. United States v. Quiver,

241 U.S. 602, 605-06 (1916)(“[T]he relations of the Indians, among themselves – the conduct of one toward another – is to be controlled by the customs and laws of

the tribe, save when Congress expressly or clearly directs otherwise.”).

“Under the ACA, if conduct prohibited by state law

occurs on federal land, the state criminal law is assimilated into federal law unless the conduct is already governed by federal law.” United States v. Thunder Hawk,

127 F.3d 705, 707 (8th Cir. 1997). Thus, the ACA “fills

gaps in the law applicable to federal enclaves, ensures

uniformity between criminal prohibitions applicable

within the federal enclave and within the surrounding

state, and provides residents of federal enclaves with

the same protection as those outside its boundaries.”

United States v. Hall, 979 F.2d 320, 322 (3d Cir. 1992).

See also United States v. Marcyes, 557 F.2d 1361, 1364

(9th Cir. 1977)(“Thus, the ACA establishes uniformity

in a state’s prohibitory laws where such conduct is not

made penal by federal statutes.”).

The Tenth Circuit has specifically found the ACA

assimilates traffic laws and other state laws into federal

enclave law in order “to fill in the gaps in the Federal

Criminal Code, where no action of Congress has been

taken to define the missing offense.” United States

v. Pino, 606 F.2d 908, 915 (10th Cir. 1979). See also

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United States v. Sosseur, 181 F.2d 873, 875 (7th Cir.

1950); United States v. Pardee, 368 F.2d 368 (4th Cir.

1966).

Defendant argues pursuant to Sosseur there must

be a “total gap” before assimilating state law; i.e., the

ACA would assimilate state law only when no other law

applies to Defendant’s conduct. The defendant in Sosseur was charged with operating slot machines on an

Indian reservation in violation of state law. The court

stated there was not any federal law applicable to the

defendant’s conduct in that case “[n]or ha[d] the Tribal

Council for defendant’s tribe ever adopted any ordinance with respect thereto.”1 181 F.2d at 874. Defendant’s reliance on the court’s comment, however, is misplaced. Earlier in its opinion the court stated:

Among the general laws of the United States

referred to in [the ICCA] is the Assimilative

Crimes Act which, by a recent decision of the

United States Supreme Court, has been conclusively held applicable to the Indian country.

Id. (citing Williams v. United States, 327 U.S. 711

(1946)). The court approved the finding of the trial

court that the ACA “has a natural place to fill, through

its supplementation of the criminal code. [The ACA]

permits the use of local State Statutes to fill in the gaps

in the Federal Criminal Code, where no action of Congress has been taken to define the missing offense. It

was enacted to supplement the offenses with the penal

code of the State in which the Reservation may be situated, and is a part of the general laws of the United

1

The court, however, noted there was a Tribal Code provision

that controlled gambling on the reservation. This was in contrast

to the state statute prohibiting any form of gambling.

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States relating to the punishment of offenses committed within the Indian country.” Id. at 875.

This Court notes the ICCA makes the ACA applicable to Indian reservations. In Williams v. United

States, 327 U.S. 711, 712-13 (1946), the court observed

an Indian reservation is “reserved or acquired for the

use of the United States, and under the exclusive or

concurrent jurisdiction thereof” pursuant to 18 U.S.C.

§ 7(3). The court concluded: “This means that many

sections of the Federal Criminal Code apply to the reservation, including … the Assimilative Crimes Act.”

Williams, 327 U.S. at 713. See also Acunia v. United

States, 404 F.2d 140, 142 (9th Cir. 1968) (noting the

ACA is among the general laws that the first paragraph of the ICCA extends to Indian territory).2

The Defendant contends the court in Williams did

not explicitly decide whether the ACA is applicable to

Indian country, and, therefore, Williams and its progeny do not have any precedential value. In United

States v. Marcyes, however, the Ninth Circuit noted

the amicus brief in that case included an identical argument regarding the applicability of Williams. 557

F.2d. 1361 (9th Cir. 1977). The Ninth Circuit stated in a

footnote:

The Supreme Court’s initial statement [in Williams] was ‘[t]his case turns upon the applicability of the assimilative Crimes Act, …’ Since it

was undisputed that the act took place within an

Indian reservation, the threshold question nec2

In Acuna the court ultimately held the Native Americandefendant’s conviction for incest upon his daughter committed in

Indian country fell within the exception of the ICCA for crimes

committed by one Native American against another. At the time

incest was not included in the provisions of the MCA.

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essarily decided was the whether the A.C.A.

even applied to Indian country. Amicus’ argument that the court merely assumed its applicability without deciding the question is belied by

the court’s own words… . Our own review of

the language of [the ACA] and [the ICCA] convinces us that the district court was correct in

holding that the A.C.A., by its own terms and

through § 1152, is applicable to Indian country.

557 F.2d. at 1365 n.1.

“The ACA’s basic purpose is one of borrowing state

law to fill gaps in the federal criminal law that applies

on federal enclaves.” Lewis v. U.S., 523 U.S. 155, 160

(1998). The Lewis court explained:

In our view, the ACA’s language and its gapfilling purpose taken together indicate that a

court must first ask the question that the

ACA’s language requires: Is the defendant’s

“act or omission … made punishable by any enactment of Congress.” 18 U.S.C. § 13(a) (emphasis added). If the answer to the question is

“no,” that will normally end the matter. The

ACA presumably would assimilate the statute.

Id. at 164.

In U.S. v. Errol D., Jr., the Ninth Circuit concluded

the MCA did not give jurisdiction to the federal government to prosecute a Native American juvenile for

burglarizing a federal building on a reservation nor did

the MCA give the district court jurisdiction to adjudge

him as a delinquent. 292 F.3d 1159 (2002). The court,

however, stated:

In holding that federal jurisdiction does not extend to crimes against government entities un-

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der the MCA, we do not mean to suggest that a

loophole exists in the panoply of federal criminal statutes, governing Indian country. To the

contrary, we believe, first, that the government

could have charged [Defendant] under the [ICCA], which, by extending the Assimilative

Crimes Act (“ACA”) … to Indian territory,

would have rendered him criminally liable for a

“like offense and a “like punishment” under

state law … .

Id. at 1164.

Based on Williams and Marcyes the Court concludes the ACA is not ambiguous and finds it constitutes a “general law of the United States” that is applicable to Indian country pursuant to the ICCA.

II. The MCA does not preclude assimilation.

A. The Parties’ Arguments

Defendant contends the MCA precludes application

of the ACA to crimes in Indian country that are not major crimes because the MCA provides an exclusive list

of state-law crimes punishable in Indian country. Defendant argues the MCA is intended to “occupy” the

field of federal major crimes punishable in Indian country and specifically excludes assimilation of victimless

crimes such as an attempt to elude a police officer. Because there is not a federal attempt-to-elude statute

and because there is tribal criminal law in place for an

attempt to elude, Defendant contends there is not a

“gap” requiring assimilation of state law.

According to the government, however, the MCA

does not preclude application of the ACA in these circumstances. The government asserts Congress passed

the MCA to address specific egregious federal crimes

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and the “Indian-versus-Indian” exception of the ICCA.

The MCA does not “occupy” the field of punishable

crimes committed by Native Americans in Indian country and does not bar assimilation under the ACA.

Thus, the government contends a crime that does not

fall within the category of crimes enumerated in the

MCA and that is not defined in federal law is definitely

within the ACA’s assimilation of state-law crimes.

B. Analysis

The MCA partially abrogated the ICCA by extending federal jurisdiction over Native Americans in Indian country for the commission of certain specifically

enumerated crimes. United States v. Begay, 42, F.3d

486, 498 (9th Cir. 1994). Congress passed the MCA in

response to Ex Parte Crow Dog, 109 U.S. 556 (1893), in

which the court overturned the conviction of a Native

American for the murder of another Native American

in Indian country due to lack of federal jurisdiction under the ICCA. The MCA “reflected a view that tribal

remedies were either nonexistent or incompatible with

the principles that Congress thought should be controlling.” United States v. Male Juvenile, 280 F.3d 1008,

1020 (9th Cir. 2002)(citing Keeble v. United States, 412

U.S. 205, 210 (1973)).

As the government points out, if the MCA occupied

the field of crimes committed by Native Americans in

Indian country and precluded application of the ACA,

numerous crimes that are not reflected in the MCA

would remain unpunishable. Instead, as has been established, when there is not a federally defined corresponding crime, the ACA assimilates state law to “fill the gap.”

For these reasons, the Court concludes the MCA

does not preclude application of the ACA to non-major

crimes committed in Indian country.

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III. The ACA applies to “victimless” crimes.

A. The Parties’ Arguments

Defendant contends even if the ACA applies to Indian country, it does not apply to “victimless” crimes or

any other crime that does not involve a non-Native

American. Defendant argues crimes that involve only

Native Americans are matters wholly internal to the

tribes, and tribal jurisdiction is exclusive. Defendant

asserts importing all state laws governing victimless

crimes would be an intrusion on tribal authority over

Native American affairs. The government, however,

contends assimilation of state law for federal prosecution

of “victimless” crimes under the ICCA and ACA is

proper to punish such crimes against the public at large.

B. Analysis

In Thunderhawk the Eighth Circuit found the assimilation of state law for federal prosecution under the

ICCA and ACA is proper to enforce “victimless crimes.”

127 F.3d 705 (8th Cir. 1997). In that case the defendant,

a Native American, crashed his vehicle on the reservation while intoxicated and injured his minor daughter

who was a passenger in his vehicle. The defendant was

charged with operating a motor vehicle under the influence of alcohol in violation of South Dakota law as assimilated by federal law. The defendant moved to dismiss

for lack of jurisdiction on the ground that the ICCA

barred the exercise of federal jurisdiction over offenses

committed by one Native American against the person

or property of another Native American. After denial of

his motion to dismiss, the defendant conditionally pled

guilty to the charge. The Eighth Circuit affirmed the

defendant’s conviction and reasoned even though the defendant’s daughter was a Native American and was injured during the offense, the crime of DUI was not an

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“Indian versus Indian” crime because injury to a victim

was not an element of the crime. The DUI, therefore,

did not fit within one of the three prohibitions to using

the ICCA as a jurisdictional basis for prosecuting the

crime. Id. at 708. The court stated:

This case illustrates how the ACA fills gaps in

the law. There is no specific federal law that

criminalized [the defendant’s] actions in driving

under the influence of alcohol in the circumstances of this case. To fill this gap in the law,

the prosecution used the ACA to assimilate the

South Dakota DUI statute into federal law.

Id.

Although the Ninth Circuit has not specifically addressed this issue, in United States v. Errol D., Jr. the

court, as noted, held federal jurisdiction under the

MCA did not extend to crimes against government entities. In a footnote the majority found the dissent’s

concern that the court’s holding created a “loophole” in

federal criminal statutes governing Indian country was

not well-taken, and the majority cited with approval

the decision in Thunder Hawk allowing the government

to charge a Native American with a victimless crime

under the ACA and ICCA.

In response, Defendant relies on United States v.

Quiver, 241 U.S. 602 (1916), to support his opposition to

the government’s arguments. In Quiver the Supreme

Court held the government did not have federal jurisdiction to prosecute a Native American for the consensual

crime of adultery under the ICCA. Although adultery

did not fall under the ICCA’s “Indian-against-Indian”

exception, the court held it was without jurisdiction

based on the congressional policy that “the relations of

the Indians among themselves – the conduct of one to-

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ward another – is to be controlled by the customs and

laws of the tribe” unless Congress directs otherwise.

The defendant in Thunderhawk made a similar argument.

The Eighth Circuit, however, rejected that argument:

We do not believe, however, that Quiver stands

for the proposition that the “Indian versus Indian” exception applies to every “victimless”

crime involving Indians. Quiver involved domestic relations, an area traditionally left to

tribal self-government. In such a case, including “victimless” crimes within the “Indian versus Indian” exception preserves the tribe’s exclusive jurisdiction over domestic matters.

Here, in contrast, the prohibition of and punishment for driving under the influence has not

traditionally been withing the exclusive jurisdiction of Indian tribes. Rather, the ACA “assimilates state traffic laws and others into federal enclave law in order ‘to fill in the gaps in

the Federal Criminal Code, where no action of

Congress has been taken to define the missing

offence.’” United States v. Pino, 606 F.2d 908,

915 (10th Cir. 1979) (citations omitted).

127 F.3d at 709.

The Court notes the Ninth Circuit has addressed

the principle of assimilation of state law pursuant to the

ACA. See United States v. Kiliz, 694 F.2d 628, 629 (9th

Cir. 1982)(ACA assimilated state law prohibiting operating a motor vehicle without a license on a naval base).

It has not, however, addressed the principle of assimilation in the context of the ICCA.

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This Court finds persuasive the reasoning of Thunderhawk and, therefore, concludes the ACA applies to

“victimless” crimes such as the one at issue in this case.

CONCLUSION

For these reasons, the Court DENIES Defendant’s Motion (#12) to Dismiss.

IT IS SO ORDERED.

DATED this 15th day of August, 2017.

s/ Anna J. Brown

ANNA J. BROWN

United States Senior District Judge

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APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 21-35036

D.C. Nos. 3:20-cv-01951-JO,

3:16-cr-00436-JO-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHNNY ELLERY SMITH,

Defendant-Appellant.

[FILED October 13, 2022]

District of Oregon,

Portland

ORDER

Before: PAEZ and NGUYEN, Circuit Judges, and

TUNHEIM, District Judge.

The panel has voted to deny the petition for panel

rehearing. Judge Nguyen has voted to deny the petition for rehearing en banc, and Judge Paez and Judge

Tunheim have so recommended. The full court has

been advised of the petition for rehearing en banc and

no judge has requested a vote on whether to rehear the

matter en banc. See Fed. R. App. P. 35. The petition

for rehearing en banc is denied.



The Honorable John R. Tunheim, United States District

Judge for the District of Minnesota, sitting by designation.