                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                No. 09-30193
                Plaintiff-Appellee,          D.C. No.
               v.                        2:05-cr-00224-
JAMES H. GALLAHER, JR.,                       LRS-1
             Defendant-Appellant.
                                           OPINION

       Appeal from the United States District Court
         for the Eastern District of Washington
      Lonny R. Suko, Chief District Judge, Presiding

                 Argued and Submitted
           March 5, 2010—Seattle, Washington

                    Filed May 19, 2010

   Before: A. Wallace Tashima, Raymond C. Fisher and
            Marsha S. Berzon, Circuit Judges.

                 Opinion by Judge Fisher;
                 Dissent by Judge Tashima




                           7141
7144              UNITED STATES v. GALLAHER
                         COUNSEL

James A. McDevitt, United States Attorney, and Joseph H.
Harrington (argued), Assistant United States Attorney, Spo-
kane, Washington, for the plaintiff-appellee.

Stephen R. Hormel, Federal Defenders, Spokane, Washing-
ton, for the defendant-appellant.


                          OPINION

FISHER, Circuit Judge:

   The Federal Death Penalty Act of 1994 conditionally elimi-
nated the death penalty for Native American defendants pros-
ecuted under the Major Crimes Act or the General Crimes
Act, subject to the penalty being reinstated by a tribe’s gov-
erning body. See 18 U.S.C. § 3598. In 2005, a federal grand
jury indicted defendant-appellant James H. Gallaher, Jr., for
first degree murder, more than 14 years after he killed Edwin
Pooler on the Colville Indian Reservation in eastern Washing-
ton. Because the Confederated Tribes of the Colville Reserva-
tion have not reinstated the death penalty, Gallaher argues that
he is not subject to the death penalty and thus the five year
federal statute of limitations for noncapital crimes applies to
his offense. See id. §§ 3281-82. We disagree and hold that
first degree murder remains a capital offense, regardless of
whether capital punishment can be imposed in a particular
case.

                               I.

   In April 1991, Gallaher lived on the Colville Indian Reser-
vation with Jennifer Clark, their baby daughter, Willow Lee,
and Edwin Pooler. One day in mid-April, Pooler arrived home
in a drunken stupor and urinated on the floor of their shared
                  UNITED STATES v. GALLAHER                7145
home. Urine splattered on Willow Lee, and Clark later
reported the incident to Gallaher. Gallaher tracked down
Pooler at a bar, and the two men quarreled. Pooler returned
home, and Gallaher told Pooler’s friend L.J. that he was going
home “to take care of the problem.” When Gallaher got home,
he told Clark to leave. After a brief absence, she returned and
saw that Gallaher had Pooler in a “neck hold” and that Pooler
had blood around his mouth. Gallaher ordered her out of the
house again.

   A short time later, Gallaher went to the neighboring home
where Clark had been waiting and demanded to borrow her
car. L.J. was there as well; Gallaher told him that he had
killed Pooler by breaking his neck. Gallaher told L.J. that he
had to help him dispose of the body or “he’d be next.” The
two men left the body in a nearby woods, and Gallaher and
Clark moved to another town that night. Gallaher moved the
body by himself a few additional times.

    Fourteen years later, in December 2005, a federal grand
jury indicted Gallaher for Pooler’s murder in violation of
§§ 1111(a), 1151 and 1153 of Title 18 of the United States
Code. Gallaher soon moved for dismissal based on expiration
of the statute of limitations. He argued that the five-year fed-
eral statute of limitations for noncapital crimes applied to his
first degree murder indictment because he was not eligible for
the death penalty under the Federal Death Penalty Act. The
Act eliminates capital punishment for certain “person[s] sub-
ject to the criminal jurisdiction of an Indian tribal government
. . . unless the governing body of the tribe has elected” other-
wise. 18 U.S.C. § 3598. The district court denied the motion,
concluding that first degree murder broadly remains “punish-
able by death.” Gallaher unsuccessfully petitioned for manda-
mus and thereafter for certiorari. See Gallaher v. U.S. Dist.
Court, No. 06-73909 (9th Cir. Dec. 6, 2006), cert. denied, 549
U.S. 1298 (2007). Eventually he conditionally pled to invol-
untary manslaughter and timely appealed. We have jurisdic-
tion under 28 U.S.C. § 1291 and review de novo the denial of
7146              UNITED STATES v. GALLAHER
Gallaher’s motion to dismiss. See United States v. Fuller, 531
F.3d 1020, 1024 (9th Cir. 2008).

                               II.

   The history of federal criminal jurisdiction over Native
American crimes in Indian country is a story of expanding
authority over America’s “domestic dependent nations,”
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 10 (1831).
See Robert N. Clinton, Development of Criminal Jurisdiction
over Indian Lands: The Historical Perspective, 17 Ariz. L.
Rev. 951, 962 (1975); see also William C. Canby, Jr., Ameri-
can Indian Law in a Nutshell 148-52 (5th ed. 2009). In Ex
Parte Crow Dog, the Supreme Court held that federal crimi-
nal statutes did not provide jurisdiction over crimes commit-
ted “in the Indian country by one Indian against the person or
property of another Indian.” 109 U.S. 556, 570-71 (1883).
The Court noted that exercise of federal jurisdiction would
“impose upon them the restraints of an external and unknown
code” and would try Native Americans “not by their peers,
nor by the customs of their people, nor the law of their land
. . . .” Id. at 571; see also Johnson & Graham’s Lessee v.
M’Intosh, 21 U.S. (8 Wheat.) 543, 589 (1823) (noting the dis-
tinct “character and habits of the people whose rights have
been wrested from them”). Despite these concerns, Congress
soon thereafter passed the Major Crimes Act, which placed
seven crimes committed by Indians in Indian country under
federal jurisdiction. See Act of Mar. 3, 1885, § 9, 23 Stat. 362,
385 (codified as amended at 18 U.S.C. § 1153); see also
United States v. Kagama, 118 U.S. 375 (1886) (upholding the
Major Crimes Act against constitutional attack). “Congress
has added other crimes over time,” and in 2006 the number
of enumerated offenses reached 15, ranging from murder to
“ ‘felony child abuse or neglect.’ ” United States v. Other
Medicine, 596 F.3d 677, 680 (9th Cir. 2010) (quoting 18
U.S.C. § 1153(a)); see also Keeble v. United States, 412 U.S.
205 (1973) (permitting conviction under the Major Crimes
Act for lesser included offenses of the enumerated offenses).
                  UNITED STATES v. GALLAHER                7147
Federal prosecution of these crimes demonstrates a marked
distinction between sovereignty retained by Native American
tribes and police power retained by the states. Outside of
Indian country, federal enclaves and federal maritime jurisdic-
tion, none of these crimes is subject to federal prosecution,
absent an additional nexus to interstate commerce or other
federal authority.

   In contrast to the expansive reach of criminal jurisdiction,
federal law in other contexts has increasingly recognized the
sovereignty of native tribes. Most broadly, the Supreme Court
has established canons favoring native tribes in both statutory
and treaty interpretation. See County of Oneida v. Oneida
Indian Nation, 470 U.S. 226, 247 (1985). The Court now
requires that “[a]mbiguities in federal law [be] construed gen-
erously in order to comport with these traditional notions of
sovereignty and with the federal policy of encouraging tribal
independence.” White Mountain Apache Tribe v. Bracker, 448
U.S. 136, 143-44 (1980). Similarly, the tribes are increasingly
encouraged to play an active role in policing reservations,
even if major crimes are still prosecuted in the federal courts.
See Indian Self-Determination and Education Assistance Act
of 1975, 25 U.S.C. § 450f; Stewart Wakeling et al., Nat’l Inst.
of Justice, Policing on American Indian Reservations 5-11
(2001). To resolve the tension between expansive federal
criminal jurisdiction and respect for Native American sover-
eignty, “ambiguous provisions in the [Major Crimes Act]
must be interpreted in favor of the tribes.” United States v.
Errol D., Jr., 292 F.3d 1159, 1164 (9th Cir. 2002).

   [1] In 1994 Congress enacted the Federal Death Penalty
Act, a provision of which delegated to tribal governments the
decision whether the death penalty could be imposed by a fed-
eral court for certain offenses committed by Indians in Indian
country. The relevant provision states in full:

    Notwithstanding [the Major Crimes Act or the Gen-
    eral Crimes Act], no person subject to the criminal
7148                 UNITED STATES v. GALLAHER
      jurisdiction of an Indian tribal government shall be
      subject to a capital sentence under this chapter for
      any offense the Federal jurisdiction for which is
      predicated solely on Indian country (as defined in
      section 1151 of this title) and which has occurred
      within the boundaries of Indian country, unless the
      governing body of the tribe has elected that this
      chapter have effect over land and persons subject to
      its criminal jurisdiction.

18 U.S.C. § 3598; see also 137 Cong. Rec. S8488-03, S8491
(1991) (statement of Sen. Domenici) (“[T]his amendment
gives the Indian legislative bodies, their tribal councils, the
authority to elect whether or not murder committed on their
land by an Indian is subject to the death penalty or not
. . . .”). According to one of the bill’s sponsors, Congress
aimed to “address Indian nations based upon their status as
governments.” 137 Cong Rec. at S8490 (statement of Sen.
Inouye).

   The Federal Death Penalty Act places Native American
tribes on an equal footing with states: they may decide
whether or not ordinary first degree murder committed within
their jurisdiction is punishable by death, even if first degree
murders in Indian country are prosecuted in federal court. See
id. at S8491 (statement of Sen. Domenici). Compare also
Wash. Rev. Stat. 10.95.030(2) (providing for imposition of
the death penalty in some cases of aggravated first degree
murder), with Mich. Const. art. 4, § 46 (“No law shall be
enacted providing for the penalty of death.”).1 The Act is part
of a larger effort to provide the tribes a choice concerning har-
sher punishment options and to eliminate disparities between
punishment for crimes committed in Indian country and pros-
  1
    What we call ordinary first degree murder stands in contrast with kill-
ings that are federal offenses regardless of where they are committed. See,
e.g., 18 U.S.C. § 1114(1) (murder of an officer or employee of the federal
government).
                  UNITED STATES v. GALLAHER                7149
ecuted in federal court and crimes committed outside of fed-
eral enclaves and prosecuted in state court. See 18 U.S.C.
§ 3559(c)(6) (providing opt-in regime for federal three-strikes
provision); id. § 5032 (providing opt-in regime for adult pros-
ecution of juveniles for certain offenses). See generally U.S.
Sentencing Comm’n, Report of the Native American Advisory
Group 21-22, 32-33 (2003) (describing sentencing disparities
and efforts to remedy them).

                              III.

   [2] The Confederated Tribes of the Colville Reservation
have not elected to permit capital punishment for relevant
Major Crimes Act enumerated crimes. It is therefore undis-
puted that first degree murder committed by a member of the
Confederated Tribes on the Colville Reservation is not, as a
practical matter, punishable by death. Thus, the question
before us is whether that crime nonetheless remains subject to
the federal statute of limitations for capital crimes.

   [3] Two statutory provisions set the limitations periods for
federal crimes. “An indictment for any offense punishable by
death may be found at any time without limitation.” 18 U.S.C.
§ 3281 (emphasis added). Under 18 U.S.C. § 3282, “except as
otherwise expressly provided by law, no person shall be pros-
ecuted, tried, or punished for any offense, not capital, unless
the indictment is found or the information is instituted within
five years next after such offense shall have been committed.”
First degree murder within the territorial jurisdiction of the
United States is ordinarily a capital crime. See 18 U.S.C.
§ 1111(b). Under the Major Crimes Act, Native Americans
who commit murder within “Indian country” are ordinarily
subject to “the same law and penalties as all other persons
committing [murder] within the exclusive jurisdiction of the
United States.” Id. § 1153(a). However, the question is
whether the conditional elimination of the death penalty for
the crime charged in this case also eliminates its status as a
capital offense subject to the unlimited statute of limitations.
7150              UNITED STATES v. GALLAHER
   The broad elimination of capital punishment without
amendment to statutes defining and punishing individual
crimes is not without precedent. After Furman v. Georgia,
408 U.S. 238 (1972), established a de facto moratorium on
executions nationwide, we continued to categorize “offenses
that under existing statutory language are ‘punishable by
death’ ” as capital crimes. United States v. Kennedy, 618 F.2d
557, 557 (9th Cir. 1980). Specifically, Kennedy held that des-
ignation as a capital crime addresses the seriousness of an
offense, rather than merely the punishment available. See id.
at 559. With regard to the procedural statutes that apply to
capital crimes, we held, “If the statute’s purpose derives from
the nature of the offense with which the defendant is charged
and not from the potential severity of the punishment, it
remains in effect.” Id. at 558; see also United States v. Wat-
son, 496 F.2d 1125, 1127 (4th Cir. 1973) (distinguishing
between procedures that protect a defendant due to the “na-
ture of the risks or complexities” of a capital trial and those
related to “the nature of the offense as it affects society”).
Kennedy applied this logic to bail and held that the federal
bail statute for capital crimes continued to apply because Con-
gress “must have concluded that when there was substantial
evidence that the defendant had committed a crime then pun-
ishable by death, such as rape or murder, the defendant posed
a danger to others sufficiently great to warrant” application of
the bail statute for capital crimes, which uniquely addressed
the dangerousness of the defendant. 618 F.2d at 558; accord
United States v. Kostadinov, 721 F.2d 411 (2d Cir. 1983)
(same).

   On the other hand, after Furman we ceased applying some
protections afforded to capital defendants. Where the purpose
of a safeguard “is to reduce the chance that an innocent defen-
dant would be put to death,” elimination of the death penalty
also eliminates the procedural right. United States v. Steel,
759 F.2d 706, 709-10 (9th Cir. 1985) (disclosure of govern-
ment witness lists); see also United States v. Goseyun, 789
F.2d 1386, 1387 (9th Cir. 1986) (20 peremptory strikes);
                  UNITED STATES v. GALLAHER                7151
United States v. Dufur, 648 F.2d 512, 515 (9th Cir. 1980)
(two defense attorneys). This accorded with precedent that
had permitted district courts to withhold certain protections
ordinarily applicable to capital cases after the federal govern-
ment had certified that it would not seek the death penalty.
See United States v. Martinez, 536 F.2d 886, 890 (9th Cir.
1976) (witness lists); accord United States v. Maestas, 523
F.2d 316, 319 (10th Cir. 1975) (same).

   [4] “Like the [bail] statute in Kennedy, and unlike the
[defendant-friendly procedural] statutes in Dufur, Goseyun,
and Steel, the statute of limitations provisions of sections
3281 and 3282 are inextricably tied to the nature of the
offense.” United States v. Manning, 56 F.3d 1188, 1196 (9th
Cir. 1995). In other words, “whether a crime is ‘punishable by
death’ under § 3281 or ‘capital’ under § 3282 depends on
whether the death penalty may be imposed for the crime
under the enabling statute, not ‘on whether the death penalty
is in fact available for defendants in a particular case.’ ”
United States v. Ealy, 363 F.3d 292, 296-97 (4th Cir. 2004);
see also United States v. Helmich, 521 F. Supp. 1246 (M.D.
Fla. 1981) (finding that legislative intent to provide unlimited
time to charge the most serious crimes is unrelated to actual
availability of the death penalty). Because premeditated mur-
der is generally punishable by death under federal law, the
district court correctly applied an unlimited statute of limita-
tions.

   A requirement that tribes opt in to the death penalty — and
the unavailability of the death penalty in this particular case
— does not reflect a legislative assessment that murder in
Indian country is a less serious offense than other murders in
federal enclaves. See supra, Section II. Regardless of the
nexus to federal jurisdiction, “[i]n a very literal sense, the
offense defined [in § 1111(b)] is still a ‘capital crime’; the
statute still authorizes the imposition of the death penalty and
Congress has not repealed it.” Manning, 56 F.3d at 1196
(internal quotation marks and citation omitted) (alterations in
7152              UNITED STATES v. GALLAHER
original). The plain text of § 1111(b) mandates that we con-
tinue to categorize first degree murder as a crime punishable
by death.

   We also find unpersuasive Gallaher’s attempt to carve out
“murder in Indian country” as a distinct offense that is not
punishable by death. The Major Crimes Act does not create
specific crimes; it merely allows for the prosecution of sub-
stantive offenses defined elsewhere. See Other Medicine, 596
F.3d at 680 (“The statute is both jurisdictional and substantive
but does not define the elements of the crimes it lists.”); 18
U.S.C. § 1153(a) (providing that defendants “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”) (emphasis added); id. § 1153(b) (provid-
ing for use of state law to define “[a]ny offense referred to in
subsection (a) of this section that is not defined and punished
by Federal law”). Moreover, even if murder in Indian country
were a distinct offense, capital punishment remains available
if a tribe chooses to allow it.

   Finally, Gallaher invokes the rule of lenity, but we do not
find the rule applicable to this case. The Supreme Court has
supplied two rationales for the rule of lenity:

    First, a fair warning should be given to the world in
    language that the common world will understand, of
    what the law intends to do if a certain line is passed.
    To make the warning fair, so far as possible the line
    should be clear. Second, because of the seriousness
    of criminal penalties, and because criminal punish-
    ment usually represents the moral condemnation of
    the community, legislatures and not courts should
    define criminal activity.

United States v. Bass, 404 U.S. 336, 348 (1971) (internal cita-
tions and quotation marks omitted). There is no concern
regarding notice because Gallaher killed Pooler prior to enact-
                   UNITED STATES v. GALLAHER                 7153
ment of the Federal Death Penalty Act. Nor are we troubled
that we are usurping the role of the popularly elected
branches. As we discussed above, broad elimination of the
death penalty does not shift the legislative assessment of the
seriousness of individual offenses. See also United States v.
Workinger, 90 F.3d 1409, 1419 (9th Cir. 1996) (Kozinski, J.,
concurring in part and concurring in judgment) (noting that
when a statute of limitations is at issue “there’s no concern
. . . that a court will render criminal what the legislature meant
to remain legal”); United States v. Caldwell, 859 F.2d 805,
807 (9th Cir. 1988) (discussing policy rationales for criminal
statutes of limitations).

                               IV.

   [5] Although precedent arising from the Furman morato-
rium guides us to apply the unlimited statute of limitations,
we must still grapple with the interpretive presumption that
any ambiguity should be resolved in favor of Native Ameri-
can sovereignty. As we noted above, the Major Crimes Act —
like all federal statutes — must be interpreted to minimize
infringement on the sovereignty of Native American tribes.
However, this canon of construction favors only the tribal
government; it does not require statutory interpretation favor-
able to individual Indian criminal defendants. See Negonsott
v. Samuels, 507 U.S. 99, 110 (1993).

   [6] If we were to limit the federal statute of limitations for
murder to five years when a tribe has not opted to permit
imposition of the death penalty against its members under the
Federal Death Penalty Act, we would in fact be limiting sov-
ereignty by burdening the choice created by the Act. “[T]here
is typically no statute of limitations for first-degree murder —
for the obvious reason that it would be intolerable to let a
cold-blooded murderer escape justice through the mere pas-
sage of time . . . .” United States v. Quinones, 196 F. Supp.
2d 416, 418 (S.D.N.Y. 2002), rev’d on other grounds, 313
F.3d 49 (2d Cir. 2002); see also Story v. State, 721 P.2d 1020,
7154               UNITED STATES v. GALLAHER
1026-27 (Wyo. 1986) (stating that no state has adopted a limi-
tations period for murder). If the statute of limitations for
murder were to shorten so dramatically as a consequence of
a tribe’s decision not to reinstate the death penalty, tribal gov-
ernments would be forced to choose between capital punish-
ment — to which they may have religious or political
objections — and justice for the most heinous of crimes.
Respect for tribal sovereignty counsels us to permit tribal
governments to choose whether to allow capital punishment
independently of the applicable statute of limitations.

   Nor would tribal prosecution serve as an adequate alterna-
tive after expiration of a five-year federal statute of limita-
tions. Although “the tribes retain jurisdiction over crimes
within the Major Crimes Act,” Wetsit v. Stafne, 44 F.3d 823,
825 (9th Cir. 1995), under the Indian Civil Rights Act “tribal
courts may not impose punishment greater than a year’s
imprisonment or a $5,000 fine, or both.” United States v.
Bruce, 394 F.3d 1215, 1220-21 (9th Cir. 2005) (citing 25
U.S.C. § 1302(7)). This restriction is a mildly expanded ver-
sion of “the federal statutory definition of a petty offense,”
Cohen’s Handbook of Federal Indian Law, § 14.04[2], at 954
(2005 ed.), and renders tribal prosecution inadequate by defi-
nition to address serious crimes, let alone first degree murder.

   [7] There is an additional policy rationale against use of a
five year statute of limitations. Given that states do not estab-
lish a limitations period for prosecution of first degree mur-
der, use of a short statute of limitations for murder subject to
prosecution under the Major Crimes Act would undermine
federal efforts to harmonize criminal justice on reservations
with criminal justice in the states. Although a shorter statute
of limitations would benefit criminal defendants, unlike other
procedural differences between capital and noncapital prose-
cutions, it would generate unique injustice for Indian victims.

                        CONCLUSION

  The Federal Death Penalty Act eliminates the availability
of capital punishment in certain circumstances, but first
                  UNITED STATES v. GALLAHER                 7155
degree murder remains an offense punishable by death. The
district court’s July 24, 2008 order denying Gallaher’s motion
to dismiss the superseding indictment is affirmed.

  AFFIRMED.



TASHIMA, Circuit Judge, dissenting:

   I agree with the majority that deference to Native American
sovereignty should be the guiding principle of our inquiry. I
respectfully disagree, however, that the majority’s interpreta-
tion of the Federal Death Penalty Act of 1994, 18 U.S.C.
§ 3598, is appropriately deferential to “Indian nations . . . as
governments.” 137 Cong. Rec. at S8490 (Statement of Sen.
Inouye).

   In my view, the Federal Death Penalty Act removes first
degree murder committed within the boundaries of “Indian
country” from the realm of offenses punishable by death and
delegates to the tribes the authority to determine the availabil-
ity of the death penalty. See 18 U.S.C. § 3598. The Confeder-
ated Tribes of the Colville Reservation has not elected to
make the death penalty available for first degree murder on
the Colville Reservation. Thus, capital punishment has been
clearly eliminated for the crime for which Gallaher was
indicted. Because Gallaher has not been indicted for an “of-
fense punishable by death,” see 18 U.S.C. § 3281, the five-
year statute of limitations applies, see 18 U.S.C. § 3282.

   The majority relies on the line of cases following Furman
v. Georgia, 408 U.S. 238 (1972), but Furman did not involve
interpreting an Act of Congress, like the Federal Death Pen-
alty Act, delegating to another government the decision of
whether to invoke the death penalty. The majority’s interpre-
tation does not give full scope to that delegation. For this rea-
7156              UNITED STATES v. GALLAHER
son, I would reverse the district court’s order denying
Gallaher’s motion to dismiss the superseding indictment.

  I respectfully dissent.
