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First descendant status insufficient to prove tribal jurisdiction

 

Being a first descendant of an enrolled member of a Native American tribe isn’t enough to prove criminal jurisdiction in federal court under the Indian Major Crimes Act, the North Carolina Court of Appeals has ruled.

This was the first time that a state appellate court has considered whether a defendant qualifies as a Native American under the IMCA—an issue that the 4th U.S. Court of Appeals has yet to address. The act allows the federal government to step in and assume jurisdiction over Native Americans accused of committing serious crimes, because tribal courts can only impose sentences of up to three years.

Accused of killing a woman during a robbery on the Qualla Boundary in western North Carolina, the defendant in the case at hand, George Nobles, initially sought to be tried in federal court to avoid the death penalty, according to his appellate defender, Anne Gomez of Durham. Nobles’ mother is a member of the Eastern Band of Cherokee Indians, or EBCI.

Later, when prosecutors took the death penalty off the table, Nobles’ jurisdictional argument became a “a question of ethnic identity and pride,” Gomez said. He is serving a life sentence for first-degree murder, armed robbery and being a felon in possession of a gun.

Laura Brewer, a spokeswoman for the state Attorney General’s Office, wrote in an email that the agency was “reviewing the decision” and declined to discuss the case further.

In ruling against Nobles, the Court of Appeals found that he failed to meet the second prong of the so-called “Rogers Test,” which refers to United States v. Rogers, a U.S. Supreme Court decision that dates back to 1846. To pass the test, a defendant must have some Native American blood and, secondly, be recognized by a tribe or the government.

Court of Appeals Judge Rick Elmore, who wrote the unanimous opinion, determined that while Nobles has a Native American blood quantum of 11/256, he is not an enrolled member of the Eastern Band of Cherokee Indians, never received government benefits that are reserved exclusively for Native Americans and failed to prove that he was “socially recognized as an Indian or socially involved with the EBCI community.”  

Elmore noted that tribal elder Myrtle Driver Johnson had testified that Nobles’ tattoo of a Native American with a headdress and an eagle were not Cherokee symbols. She said the eagle was “generic” and the headdress image would be “frowned upon” by tribal elders—it shows that “you’re not proud of your Cherokee heritage, because that is not of Cherokee.”

She also said she didn’t know Nobles and was unaware of his ever participating in EBCI ceremonies or other events.

“She’s just one member of the tribe and a lot of the things she testified to are really in opposition to tribal laws and recognition given to first descendants by laws passed by tribal members,” Gomez said.

She argued that what’s important is the fact that Nobles was “trying to hold himself out as a Native American.” She added, “I don’t think it should be held against him that the eagle is a general symbol for Native Americans or he got the headdress wrong. It is some effort to hold himself out and be proud of his heritage.”

Gomez stressed that Cherokee tribal courts have considered first descendants to be under their jurisdiction. And she dismissed the Rogers Test as being antiquated and “derived from a case that came from a much more racist era than we live in now.”
The Court of Appeals acknowledged that “exercising tribal criminal jurisdiction over first descendants reflects a degree of tribal recognition,” but relied on the 9th Circuit’s determination that “enrollment, and, indeed, even eligibility therefor, is not dispositive of Indian status.”

“As tribal enrollment has been declared insufficient to satisfy Rogers’ second prong as a matter of law,” Elmore wrote, “it follows that the exercise of criminal tribal jurisdiction over first descendants is also insufficient.”

A major theme of the case, Gomez said, is the jurisdictional tug of war between the tribal courts and the government.

“What should have happened is they [the authorities] should have asked Mr. Nobles, ‘Are you a first descendant?’” she said. “Then he would’ve been under tribal jurisdiction.”

But that never happened, according to Gomez, who was unsure why. She said Nobles planned to petition the state Supreme Court for discretionary review.

The 32-page decision is State v. Nobles (Lawyers Weekly No. 011-224-18). An opinion digest is available at nclawyersweekly.com.

Follow Phillip Bantz on Twitter @NCLWBantz


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