NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v.
JOHNNY ELLERY SMITH,

Defendant

- Appellant. No. 21

- 35036

D.C. Nos. 3:20

- cv

- 01951

- JO

3:16

- cr

- 00436

- JO

- 1

MEMORANDUM *

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

Before: PAEZ and NGUYEN, Circuit Judges, and TUNHEIM, * * District Judge.

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 aff irmed Smith’s conviction s on direct appeal , holding that

the federal government had jurisdiction to prosecute him for violations of Oregon

* 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. 

# FILED

AUG 4 2022

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

law committed on the Warm Springs Reservation because the Assimilative Crimes
Act (“ ACA ”) applie s to Indian country

. United States v. Smith , 925 F.3d 410 ( 9 th

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 , 1 42 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 applie s 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” ref erred

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 holdin g. Smith does

not dispute that the “general laws” extended to Indian country by the ICCA are the

“ federal laws that apply in federal enclaves

. ” Castro

- Huerta
, 142 S. Ct. at 2495.

Rather, h e contends that the ACA is not among such “general law s ” because “the

ACA is not a federal criminal law.” T hat question, however, was not decided in3

Castro

- Huerta , which made no mention of the ACA. T he 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, w e 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

– 1 8

. We reasoned that Indian country qualifies as a “fe deral enclave” under the ACA, and thus the ACA’s provisions apply there

. Id. Smith contends that this holding is undermined by McGirt because the re 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.