NOT FOR PUBLICATION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 affirmed Smith’s convictions 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 APPEALS
2 

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.” Castro-Huerta, 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, however, was not decided in
3 

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.