Thursday, April 19, 2018

Race and Racial Groups

Indians and The Vampire Law

excerpted from: John Rockwell Snowden, Wayne Tyndall, David Smith, American Indian Sovereignty and Naturalization: It's a Race Thing, 80 Nebraska Law Review 171-238, 199-230 (2001)(337 Footnotes)


The history of the "Indians" begins with the arrival of this person Columbus, but the history of the People goes back to the beginning of time. This predator, civilization, confuses us about our identity. John Trudell


A. The Origins of Federal Blood Law

The issue to be considered is whether or not the United States would recognize a person, without some Indian blood or descent, who is an adopted or naturalized member of an Indian nation as a member of that nation for purposes of federal laws distributing sovereign authority, jurisdiction. The foundational case is United States v. Rogers.

William S. Rogers was indicted in the Circuit Court of the United States for the District of Arkansas which geographically included at that time the Cherokee Nation. The charge was the murder of Jacob Nicholson. Both Rogers and Nicholson, white men and onetime citizens of the United States, had long before the acts in question become by marriage adopted members of the Cherokee and entitled to all rights and privileges under the nation's laws. Both were domiciled in Indian country where the acts took place.

Federal authority came under the act of Congress on the 30th of June, 1834, entitled, "An act to regulate trade and intercourse with the Indian tribes, and to preserve the peace of the frontiers." A provision to the twenty-fifth section of the act stated that the section "shall not extend to crimes committed by one Indian against the person or property of another Indian." Rogers put in a plea to the indictment arguing against jurisdiction and the Circuit Court, being divided, certified the record to the Supreme Court.

Were Rogers and Nicholson Indians? Chief Justice Taney authored the opinion of the Court: "Whatever obligations the prisoner may have taken upon himself by becoming a Cherokee by adoption, his responsibility to the laws of the United States remained unchanged and undiminished. He was still a white man, of the white race, and therefore not within the exception in the act of Congress."

Every lawyer knows that law is, as is the world, a mixture of idea and fact. Some legal concepts, "Indian" (perhaps), seem to denote an existential reality and connote legal relations. Other legal concepts, "Indian" (perhaps), seem to denote jural rights, duties, powers, or liabilities, while carrying a connotation of the usual factual circumstances. Legal thought understands, as did Chief Justice Taney, that the question is never, "Is Joshua an Indian?" Rather the proper question is, "Whether or not Joshua is an Indian for the purpose of a principle, rule, goal, or policy recognized by the law." The law reflects both purposive ordering and the reality of existing chaos. What purposive vision appears in the Taney opinion? And what values inform that purpose?

The circuit court had certified three questions to the Court. First, could a citizen of the United States expatriate himself without some kind of form or condition imposed by the federal government? Second, could the Cherokee Nation or other Indian nations exercise the sovereign power to naturalize citizens of other nations and to make them exclusively citizens of the Indian nation? Third, does the provision apply only to "natives of the Indian tribes of full blood or also to Indians (natives), or others adopted by, and permanently resident within, the Indian tribes" or also to "progeny of Indians by whites or by negroes, or of whites or negroes by Indians, born or permanently resident within the Indian tribes and limits," or also to "whites or free negroes born and permanently resident in the tribes, or to negroes owned as slaves, and resident within the Indian tribes, whether procured by purchase, or there born the property of Indians?"

Chief Justice Taney began by stating that "native tribes" had never been treated as independent nations. Following the lead of Chief Justice Marshall, he noted the uselessness of raising any questions of justice, and at any rate:

[F]rom the very moment the general government came into existence to this time, it has exercised its power over this unfortunate race in the spirit of humanity and justice, and has endeavored by every means in its power to enlighten their minds and increase their comforts, and to save them if possible from the consequences of their own vices.

He next asserted the power of Congress to make law for Cherokee country that would be applicable to any person, and then turned to the provision in question finding it clear that a white man adopted at mature age did not come within the Indian against Indian crime exception. The Chief Justice said that such a person may by adoption become a member of the Cherokee subject to their laws and usage, but the federal statute spoke of Indians. "Yet he is not an Indian; and the exception is confined to those who by the usages and customs of the Indians are regarded as belonging to their race. It does not speak of members of a tribe, but of the race generally,--of the family of Indians . . ."

Chief Justice Taney then moved beyond the statutory language and argued that peace would be difficult to preserve if white men of every description might "at pleasure settle among [the Cherokee], and, by procuring an adoption by one of the tribes, throw off all responsibility to the laws of the United States." Yet adoption or naturalization was in the arena of Cherokee law and no one could become a Cherokee citizen without its authority. And, the Cherokee had an effective police and judicial system. Perhaps, of most importance was Chief Justice Taney's final axiological, value driven argument: Congress could not have intended to grant exemption from federal criminal jurisdiction "to men of that class who are most likely to become Indians by adoption, and who will generally be found the most mischievous and dangerous inhabitants of the Indian country."

The proviso then did not apply to Rogers and Nicholson. Indian nations, domestic dependent sovereigns by federal legal ascription, were spoken of only as native tribes. Indians, the justice of federal relations put aside, were an unfortunate race now under the care of the United States who would enlighten their minds and save them from the consequences of vice. Federal law, at least the statute here, did not use "Indian" as a short hand for many nations, but as a racial classification. The "tribes" could not control their own internal affairs with the needed skill, particularly if they were so stupid as to allow a white man to live among them. Finally, any white man who would leave his nation and his race must be a degenerate.

But, did not the Cherokee have a treaty with the United States that promised to honor and protect their independence?

The United States hereby covenant and agree that the lands ceded to the Cherokee nation in the forgoing article shall, in no future time without their consent, be included within the territorial limits or jurisdiction of any State or Territory. But they shall secure to the Cherokee nation the right by their national councils to make and carry into effect all such laws as they may deem necessary for the government and protection of the persons and property within their own country belonging to their people or such persons as have connected themselves with them: provided always that they shall not be inconsistent with the constitution of the United States and such acts of Congress as have been or may be passed regulating trade and intercourse with the Indians; and also, that they shall not be considered as extending to such citizens and army of the United States as may travel or reside in the Indian country by permission according to the laws and regulations established by the Government of the same.

Chief Justice Taney might have concluded that the treaty and its particular promises to the Cherokee, "their people, or such persons as have connected themselves with them," controlled the general language of the Trade and Intercourse Act of 1834. However, Chief Justice Taney did not imagine nations, but rather races. He thus read the treaty stipulation that Cherokee law not be inconsistent with federal law as indicating that the treaty was not intended to alter any part of the act passed just a few months earlier. Yet, he did not specify what would be inconsistent.

It would have seemed an honorable and coherent notion to protect Cherokee sovereignty by reading the treaty and statute as recognizing Cherokee jurisdiction over their people, as defined by the Cherokee Nation. And, it would have been consistent with federal policy to do so. Certainly it would have been consistent with federal policy to encourage Indian nations that adopted ever more European legal forms. Inconsistency must have arisen in the imagination of race. "He was still a white man, of the white race . . . ."

The circuit court's first question was not race-based and the Supreme Court did not offer any answer relating to rights of expatriation. The circuit court's second question was not answered regarding exclusive citizenship in the naturalizing nation, and the idea of dual citizenship was not considered. Rogers could be a Cherokee for Cherokee purposes, but federal law would only see his citizenship in the United States, which was presumed without arguments to continue. As to the many who is an Indian issues, the Supreme Court's response to the Circuit Court's third question only made clear that for federal purposes race was going to be the determinant.

"Indians and Whites do not exist . . . . Indian and White represent fabled creatures, born as one in the minds of seventeenth- and eighteenth- century European thinkers trying to make sense of the modern experience . . . ." There is not a White nation nor any Indian nation, though there is Greenland and India. There are today more than 556 Indigenous nations recognized by the United States. And, although "courts have consistently recognized that one of an Indian tribe's most basic powers is the authority to determine questions of its own membership," every instance of federal law distributing jurisdictional sovereign authority includes a question of racial criteria for those to whom it applies. The Rogers case is not an isolated and narrow manifestation of federal Indian law, but rather a fourth pillar which with the Marshall Trilogy is the base of current understanding.

One year after the Rogers decision, the Circuit Court for the District of Arkansas was again faced with a jurisdictional question involving an adopted Cherokee in United States v. Ragsdale. Thomas Ragsdale, a Cherokee Indian, was indicted for the murder of Richard Newland, a white man who became a Cherokee by marriage to a Cherokee woman in 1835. When the Cherokee were removed from the Mississippi area in 1835, Newland was removed with them and continued to be recognized as a Cherokee at the time of the alleged murder. Ragsdale entered a plea of not guilty and an issue of a prior pardon under the second article of the Treaty of Washington concluded with the Cherokee on August 6, 1846.

All difficulties and differences heretofore existing between the several parties of the Cherokee nation are hereby settled and adjusted, and shall, as far as possible, be forgotten and forever buried in oblivion. All party distinctions shall cease, except so far as they may be necessary to carry out this convention or treaty. A general amnesty is hereby declared. All offences and crimes committed by a citizen or citizens of the Cherokee nation against the nation, or against an individual or individuals, are hereby pardoned.

The issue was whether both Ragsdale and Newland were Cherokee for the purpose of the pardon provision of the treaty. District Judge Johnson started off with reference to Rogers, but he had a focus that recognized the sovereign, even if diminished, status of the Cherokee. They were dependent nations and always had the power to adopt others as members. And, Judge Johnson quoted language in Rogers as expressly affirming such power in the Cherokee.

Chief Justice Taney had said that a white man may become a member of an Indigenous nation, but they were not "Indian" for purposes of the exception to federal criminal jurisdiction. Judge Johnson did not miss the distinction. He looked to the purpose and language of the treaty pardon provision which referred not to "Indian" but to "citizen or citizens of the Cherokee Nation." One of the treaty purposes was to restore peace among hostile factions of the Cherokee and to bury past differences in oblivion. Thus he concluded:

In this plenary pardon to all native born Cherokees, why should it not also extend to adopted members of the tribe? After adoption they became members of the community, subject to all the burdens, and entitled to all the immunities of native born citizens or subjects; and it is reasonable, in my judgment, to suppose that they were intended to be included in the general amnesty.

It would be fifty years before another issue of a naturalized or adopted non- racial citizen of an Indigenous nation came before the Supreme Court in a matter of Indian nation or United States jurisdiction. However, two cases of "Indian" identity and jurisdiction in the early 1890s should be noted. First, In re Mayfield held that an adultery prosecution against a Cherokee defendant was a proceeding in which a Cherokee was the "sole party" and that Cherokee courts consequently had exclusive jurisdiction.

John Mayfield was convicted of adultery with a white woman under a federal statute. Mayfield claimed to be a Cherokee by blood and the prosecution stipulated that he was one-fourth Indian by blood, and a citizen of the Cherokee tribe of Indians. Mr. Justice Brown held for the Court that Mayfield was a member of the Cherokee Nation, "by adoption, if not by nativity." Consequently, statute and treaty provisions gave exclusive jurisdiction to the Cherokee.

An 1890 act of Congress for the Territory of Oklahoma provided in its thirtieth and thirty-first sections that Indian nations or "the civilized nations" should have exclusive jurisdiction where "members of the nation by nativity or adoption shall be the only parties," or "wherein members of said nations, whether by treaty, blood, or adoption, are the sole parties." These statutes confirmed for the Court the continuing force of an earlier treaty with the Cherokee in 1866 which promised that Cherokee Courts would be the single jurisdiction for cases where the only parties are "members of the nation, by nativity or adoption."

The Court did not explain why Mayfield was the sole party. However, it did note in reference to another treaty provision that the person with whom the adultery was claimed to have been committed was not adverse, but consenting. Further, the case was not brought by Mayfield's wife if the crime of adultery could be considered as against her.

The second case, Famous Smith v. United States, involved the Indian against Indian crime exception to federal jurisdiction. Famous Smith, convicted of murder, was an undisputed Cherokee. The question focused on his victim, Kajo Gentry. The trial judge had instructed the jury that they must find that Gentry was "a white man"; meaning by this a "'jurisdictional citizen of the United States.' That if he were, notwithstanding the defendant was an Indian, the court still had jurisdiction."

The facts showed Gentry's father to have been "either of Cherokee blood or mixed Creek and Cherokee." He was "recognized as an Indian," and was enrolled, and participated in the payment of "bread money" to the Cherokees. The prosecution offered that Gentry had been denied participation in a Cherokee election, had lived for some time in Arkansas, and had come to the Cherokee Nation by way of the Choctaw Nation. The prosecution's theory was that Gentry had severed his relation with the Cherokee.

Mr. Justice Brown held for the Court that the prosecution must prove Gentry was, "a white man and not an Indian," and concluded that the prosecution's evidence failed to do so. The conviction was set aside.

Mayfield and Famous Smith did not involve non-racial members of Indigenous nations, but they do indicate some change and some continuity in the problem of who is an "Indian" for jurisdictional purposes. Federal statutes dealing with a particular territory had jurisdictional rules phrased in terms of members by nativity or adoption. Treaties, always nation to nation, also referred to citizens or members. Consequently, the argument that "Indian" in a general jurisdictional statute means race, not nationality, might sometimes be avoided. And, no question was raised against a naturalized (perhaps) member that was a racial "Indian." However, since 1871 treaty relations have been prohibited with Indian nations. Consequently, the opportunity to secure jurisdiction for all Indigenous nation citizens by treaty is no longer available.

The Courts continued to look at "Indian" as the opposite of a "white man." Although the Supreme Court in Famous Smith found that the United States had not met its burden of proof, it was not bothered by the trial court's or its reference to a jurisdictional citizen of the United States as "a white man." Little had changed from the pre-civil war role of race in Rogers. Those owing allegiance to or receiving protection from the federal or Native sovereigns were racial phantoms rather than flesh and blood political actors.

From 1895 to 1897, four cases came before the Supreme Court with jurisdictional issues involving adopted or naturalized, but non-racial members of Indian nations. In Westmoreland v. United States, Thomas Westmoreland was convicted of the murder of Robert Green. The only records before the Court were the indictment, the judgement, and the motion in arrest thereof. The indictment described Westmoreland and Green as "white person[s] and not . . . Indian[s], nor . . . citizen[s] of the Indian Territory." The events took place within the Chickasaw Nation and the trial was in the Circuit Court of the United States for the Eastern District of Texas.

The defendant argued the Indian against Indian exception to federal jurisdiction. Mr. Justice Brewer began with the Rogers holding that "Indian" is a racial term for purposes of the Indian against Indian exception. But, Westmoreland had one more card to play. The Treaty of 1866 with the Choctaws and Chickasaws provided that:

Every white person who, having married a Choctaw or Chickasaw, resides in the said Choctaw or Chickasaw nation, or who has been adopted by the legislative authorities, is to be deemed a member of said nation, and shall be subject to the laws of the Choctaw and Chickasaw Nations according to his domicile, and to prosecution and trial before their tribunals, and to punishment according to their laws in all respects as though he was a native Choctaw or Chickasaw.

Consequently, Westmoreland claimed that the indictment should have negatived the possibility of membership by marriage or adoption to avoid the treaty exclusivity provision that was now in the Federal jurisdictional statute: "This section shall not extend to . . . any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively."

The Court held that the indictment was sufficient to negate all possible citizenships in the Chickasaw Nation. It had charged that Westmoreland was a "white person, and not an Indian, nor a citizen of the Indian Territory." As a result, the sufficiency of the indictment being the only issue, the conviction was affirmed.

In Alberty v. United States, Alberty had been convicted in federal court for the murder of Phil Duncan, an illegitimate child of a Choctaw Indian and a Negro woman who was at the time of Duncan's birth a slave in the Cherokee Nation. The Court determined that Duncan was, "a colored citizen of the United States." Alberty would also seem to have been a Negro; however, by a treaty provision Alberty was a citizen of the Cherokee Nation. Justice Brown started with the now well settled notion that Alberty, although Cherokee, was not Indian.

The 1866 treaty also had a jurisdictional provision that gave the Cherokee exclusive jurisdiction in all cases where "members of the nation, by nativity or adoption, shall be the only parties." And, the most recent legislation to provide for the Territory of Oklahoma contained a similar promise of exclusive Cherokee jurisdiction where "members of said Nations, whether by treaty, blood, or adoption are the sole parties."

The Court concluded that the "sole" or "only parties" language referred to the actual people involved in the crime. Justice Brown attempted to distinguish In re Mayfield as being a case where there was no adverse party due to the consent of the woman to the charged adultery. As a result, federal jurisdiction was upheld, but Alberty's conviction was overturned due to errors in the trial court's instructions regarding self-defense and flight.

A little more than a month after Alberty, the Court decided Lucas v. United States. Lucas, a Choctaw, was convicted in federal court for the murder of Levy Kemp, who was alleged in the indictment to have been "'a negro and not an Indian." ' An 1866 treaty with the Choctaw provided in article three that the Choctaw would receive a sum of $300,000 for cession of territory to the United States conditional upon the Choctaw giving residents of African descent full citizenship in the nation. In 1883, the legislature of the Choctaw Nation adopted its freedmen as citizens. The same statute for the Territory of Oklahoma at issue in Alberty was applicable here, and the issue for the Court was whether the only parties were members of the Choctaw Nation by nativity or adoption.

Justice Shiras found that the trial court had instructed the jury to presume that Kemp, a Negro, was not a member of the Choctaw. The Court found this error, as the question should have been one of fact for the jury without any presumption. Along the way it was noted that Rogers was easily distinguished since in that case, "there was no statute in terms extending jurisdiction of the Indian courts in civil and criminal cases over their adopted citizens." Westmoreland was never mentioned.

In January of 1897, the Court issued its opinion in Nofire v. United States. Nofire and others, "full-blooded Cherokee Indians," were convicted in the federal court and sentenced to hang for the murder of Fred Rutherford. The indictment charged that Rutherford was "'a white man and not an Indian." ' However, evidence was offered to prove that he was an adopted member of the Cherokee Nation by marriage. FN196] The federal jurisdictional law was the same as in Alberty, i.e., specific treaty and statutory provisions promised that the Cherokee courts would have exclusive jurisdiction when all parties were members of the nation, by birth or adoption.

The jurisdictional issue being clear, the only question before the Court was the sufficiency of the evidence regarding Rutherford's marriage. The Court reversed the trial court and found that the facts established Rutherford's marriage in accord with Cherokee law and thereby his membership in the nation. The case was remanded with instructions to surrender the defendants to the authorities of the Cherokee Nation.

Nofire is the last Supreme Court case dealing with jurisdictional authority over naturalized or adopted non-racial citizens or members of an Indian nation. And, it might seem that it signals a recognition that such a person would be treated by federal law as an "Indian" for jurisdictional purposes. However, the cases just considered make it clear that "Indian" in federal criminal jurisdiction statutes remained a racial term. Adopted or naturalized non-racial members of Indigenous nations would be recognized by federal law only when a treaty and/or statute specifically referred to citizens or members of the nation by blood or adoption. Today such treaty provisions are forbidden and relevant primarily as history; only indirectly offering insight to jurisdiction matters.

B. The Rogers Legacy--Racial Jurisdiction

Chief Justice Taney's opinion in Unites States v. Rogers remains a vital part of current federal Indian law. With the Congressional decision to end treaty relations with the Indian nations in 1871, any opportunity for treaties referencing "citizens" of the particular Indian nation or promising exclusive Indian jurisdiction in cases where all parties are "members . . . by nativity or adoption," was ended. Today jurisdictional questions turn on "Indian" in the criminal jurisdiction statutes and that term is understood as it was by Chief Justice Taney: "It does not speak of members of a tribe, but of the race generally."

1. Federal Criminal Cases

Federal courts begin with a citation to Rogers, usually stating a version of the following: "[T]he term 'Indian' has not been statutorily defined but instead has been judicially explicated over the years. The test, first suggested in United States v. Rogers and generally followed by the courts, considers (1) the degree of Indian blood; and (2) tribal or government recognition as an Indian."

The "Indian" test then contains two questions: (1) how much blood; and (2) what counts as tribal or government recognition? The focus in this Article is on naturalization and blood, or descent, but it is necessary to look briefly at the second issue--recognition. The Supreme Court tells us:

[F]ederal regulation of Indian affairs is not based upon impermissible classifications. Rather, such regulation is rooted in the unique status of Indians as "a separate people" with their own political institutions. Federal regulation of Indian tribes, therefore, is governance of once- sovereign political communities; it is not to be viewed as legislation of a "'racial' group consisting of 'Indians' . . . ." Indeed, respondents were not subjected to federal criminal jurisdiction because they are of the Indian race but because they are enrolled members of the Coeur d'Alene Tribe.

Experience would give truth to these words if jurisdictional laws distinguishing "Indians" from others looked to the law of the Indigenous peoples' political institutions. However, the Court in a footnote to the quoted passage reminds us that enrolled membership is not a requirement.

Two recent federal cases use the Rogers test, blood and recognition, to determine whether a child victim of abuse by a non-Indian defendant was an "Indian" for the purpose of jurisdiction under the Indian Country Crimes Act. In United States v. Lawrence, the Eighth Circuit found the child victim not to be an "Indian" and affirmed a dismissal of the indictment. The victim was an "11/128ths Oglala Sioux Indian," and the district court had presumed that to be within the "requisite quantum of Indian blood." However, the victim failed the recognition test: (1) enrollment, (2) federal government recognition formally or informally through assistance reserved only for Indians, (3) enjoyment of benefits of tribal affiliation, or (4) social recognition via residence and participation in Indian social life. The child was not enrolled, and eligible for enrollment only after completing a one-year residency. Yet, the Oglala had intervened through their courts to rescue the child from abandonment in Las Vegas, made her a ward of the Oglala court, and placed her in the custody of her Oglala grandmother. The court concluded that there was not sufficient recognition.

In United States v. Keys, the child victim was the daughter of an enrolled member of the Colorado River Indian tribe who was "one-half Indian blood," while the defendant father was "African-American." The conviction was upheld despite the defendant's argument that since the victim was not enrolled, a finding that she was "Indian" would be based on race and in violation of the Equal Protection Clause.

The Keys court used the Rogers test, the issue being the second part thereof, recognition:

Enrollment is not the only means to establish membership in a tribal political entity. Here, the daughter's "Indian" status is based on the recognition by tribal institutions of her membership in the tribe. Her classification as an "Indian" is not race-based and, consequently, Keys' prosecution under 1152 does not violate the Equal Protection Clause.

In Keys, the tribal recognition was established by the mother's calls to Tribal Social Services, treatment of the child by Indian Health Services, and the filing of a "child in need of care" petition in tribal court.

Though sharing contrary results, Lawrence and Keys are recent examples of the continuing use of Rogers to determine "Indian" status. The issue here is the federal law's focus on blood, but the recognition factor is also telling. Blood and enrollment end the matter, but what of the idea that recognition may be found without enrollment? Native nations all have some law determining membership in the polity. If "Indian" status is political, how can the law of Native nations be supplanted by a federal court's view of "recognition" ? If the political lens looks to the actions of the United States, why should federal action towards a person be determinative of that person's status in another nation for purposes of jurisdiction?

2. State Criminal Cases

The federal criminal jurisdiction statutes deny states jurisdiction in matters where they are applicable, and state convictions have been challenged for jurisdiction in both federal and state courts. State cases also employ the Rogers definition of "Indian." In State ex rel. Poll v. Montana Ninth Judicial District Court, the Montana Supreme Court dealt with a situation that was close, but distinct from the old cases. One of the defendants, Don Juneau, was born of non-Indian parents. However, under the law of Montana he was legally adopted by a member of the Blackfeet Nation, Benton Juneau, and he lived and worked all of his life in the Blackfeet Nation. He attended Indian schools, practiced Indian religion, participated in Blackfeet culture, married a member of the Rocky Boy Nation, had Indian friends, and had Indian children. He was not enrolled, did not vote in Blackfeet elections, did not hold any Blackfeet office, and did not receive any federal benefits.

The Montana court cited Rogers and found that Don Juneau failed both prongs of the "Indian" test; he did not have significant Indian blood and did not have tribal or federal recognition. Thus, Montana had jurisdiction.

The case is particularly interesting for several reasons. First, there are no cases in the criminal jurisdiction context raising an issue of a naturalized non-racial member of an Indian nation after the 1897 case of Nofire v. United States. Poll concerned an adopted child, but by the late twentieth century Indigenous culture made the European distinction between adoption and naturalization, and Don Juneau had not been naturalized by the Blackfeet. Of course, that raises questions of whether that was either possible or desirable.

Second, a concurring and dissenting opinion by Justice Trieweiler agreed that the defendant failed the Rogers test, but argued that the test was "antiquated" and failed to realize that "an inherent element of tribal sovereignty is to enroll members, regardless of their degree of Indian ancestry." Then, Justice Trieweiler argued that a proper analysis in the case would have looked to federal preemption and a balancing of federal, tribal, and state interests. The crimes involved gambling offenses on the Blackfeet Nation's land and consequently federal law and tribal interests should have prevailed to deny state jurisdiction.

The state cases rather uniformly use the Rogers test of "Indian" for criminal jurisdiction. Yet, as in Poll, a judge sometimes questions its appropriateness. In Vialpando v. State, the Wyoming Supreme Court affirmed the conviction of Dennis Vialpando, holding that one-eighth Indian blood is not a "substantial amount of Indian blood" and that he did not have "'a racial status in fact as an Indian." ' Vialpando was "by blood one-eighth Shoshone Indian"; not an enrolled member; had been treated at the Bureau of Indian Affairs hospital; lived in the Shoshone Nation for many years; hunted under an Indian permit; attended Shoshone cultural events; and had suffered racial discrimination as an Indian. He failed the Rogers test.

In another less than sanguine acceptance of race based status, Justice Rooney concurred that Vialpando was not "Indian" for jurisdictional purposes. Nevertheless, Justice Rooney said, "racism is an improper factor upon which to resolve matters such as this. Indian sovereignty would be a more satisfactory basis. . . ." However, Justice Rooney also thought Indian sovereignty was "only a facade which hides the true status of Indians." Justice Rooney's views of Indian sovereignty notwithstanding, he believed that tribal sovereignty did provide that a tribe could determine its own nationals. Consequently, as the Shoshone had not enrolled the defendant and he was not eligible for enrollment, the state conviction was permissible.

C. The Disappearance of the Non-Racial Naturalized Indian

Although the law of United States v. Rogers remains a vital part of federal Indian law, the factual circumstance of adopted or naturalized non-racial citizens of Indian nations has disappeared from reported cases and perhaps no longer exists. There is little, if any, scholarly writing devoted to the phenomenon, but a few recent works discuss the federal role in Indian identification. M. Annette Jaimes argues that it is an inherent element of sovereignty to determine a nation's citizenry or membership and that federal policy defining Indigenous nation membership by "blood quantum" or "degree of Indian blood" is "racist" and has "genocidal implications." Ward Churchill has described federal definitions of membership, foisted upon and adopted by Indian nations, as the "most advanced and refined iteration of imperialism." Both Jaimes and Churchill refer to the 1887 General Allotment Act as a crucial moment in the implementation of federal Indian identity policy.

The General Allotment Act parceled out land in severalty to individual Indians. The congressional reformers hoped to assimilate Indians into a small agrarian culture by having them become landowners and by associating with new non-Indian neighbors who would be allowed to homestead on unalloted land. A similar program was later applied to the Indian nations of Oklahoma. Justice Scalia has said, "The objectives of allotment were simple and clear cut: to extinguish tribal sovereignty, erase reservation boundaries, and force the assimilation of Indians into society at large."

The foundation of allotment was the production of formal rolls listing the members of each nation that would be eligible for an allotment of land. The federal agent sent to each Indian nation was responsible for these rolls and they relied heavily on blood-quantum. Not less than one-half degree of blood was a typical standard and rarely did the standard slip below quarter-blood. Blood also was used to expand or contract the restrictions on the land allotted, with the preferences to those of less Indian blood.

By the first years of the twentieth century, Indian nations had their polity determined by federal administration. Moreover, blood had been made an engine of destruction turning Indigenous citizens against each other. Today blood is a membership requirement in many Indian nations. The Indian Reorganization Act of 1934 ended the allotment policy and provided for the establishment of federally approved tribal governments with constitutions and bylaws drafted by federal lawyers. The Indian Reorganization Act of 1934 also focused on blood and descent:

The term "Indian" as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood.

John Collier, Commissioner of Indian Affairs at the time of the IRA, was a proponent of blood and descent as the earmark of Indian identity. In a circular to Superintendents and Field Agents doing IRA work, Collier stressed that the policy of the federal government would be to give close scrutiny to constitution and bylaw membership provisions. Further, provisions for adoption of non-members should require approval by the Secretary. 'It is important that the Indians not only shall understand this policy but shall appreciate its importance as it applies to their own welfare through preventing the admission to tribal membership of a large number of applicants of small degree of Indian blood.'

As the Indian nations adopted IRA constitutions with the federal model of blood-quantum membership, the last step was completed for the internalization of colonial racial identity law. Now the federal government could rely on the Indian nations to articulate its race laws and point to the nations as being responsible for their existence. "A more perfect shell game is impossible to imagine."

The last cases involving non-racial naturalized citizens of the Indian nations all stem from struggles over who would be entitled to allotment parcels of land. In the so-called Cherokee Intermarriage Cases, the Supreme Court construed Cherokee laws of citizenship and naturalization as excluding non- Indian adopted members from property rights and thus from allotment. The Cherokee law, after an 1875 amendment, allowed non-racial adopted members political participation, but denied such citizens rights of soil or interest in the vested funds of the nation. The Court recognized that an Indian nation could change its citizens' status, and as it had once been in England there could be distinct classes of citizens.

In United States ex. rel. West v. Hitchcock, a naturalized non- Indian member of the Wichita Nation sought mandamus to compel the Secretary of the Interior to approve selection of an allotment. Justice Holmes held that the Secretary's decision was unreviewable by stating, "some one must decide who the members are." It seemed clear that the petitioner had been adopted by Wichita law. However, the Secretary apparently denied the selection because the adoption had not been approved by the Indian Office as required by regulations.

The relator contends that the validity of the adoption was a matter purely of Indian law or custom, and that the Department could not take it under control. Probably it would have been unfortunate for the Indians if such control had not been exercised, as the temptation to white men to go through an Indian marriage for the purpose of getting Indian rights is sufficiently plain. We are disposed to think that authority was conferred by the general words of the statutes. Rev. Stats. 441, 463. By the latter section: 'The Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the President may prescribe, have the management of all Indian affairs, and of all matters arising out of the Indian relations.' We should hesitate a good deal, especially in view of the long-established practice of the Department, before saying that this language was not broad enough to warrant a regulation obviously made for the welfare of the rather helpless people concerned.

Justice Holmes' view of Indian people and of whites who would associate with them was identical to that of Chief Justice Taney who had sixty years before called Indians "this unfortunate race" and naturalized whites "the most mischievous and dangerous inhabitants of the Indian country."

The Supreme Court of Oklahoma decided two of the last three reported cases involving naturalized non-racial members of an Indian nation. Reed v. Clinton held that a contract of conveyance from a naturalized white member of an Indian nation was void. The court reasoned that the Congressional prohibition of conveyance of allotments was plain and that they therefore could not examine the purpose of the prohibition.

In Franklin v. Lynch, a white woman had become a naturalized member of the Choctaw Nation. The United States Supreme Court held that she could not convey an expectancy of an allotment by a warranty deed executed before she had been officially naturalized by Choctaw law and the allotment made. Congress had removed alienation restrictions on allottees of the Choctaw Nation who were "not of Indian blood." However, a prior statute stated that allotted lands should not be affected by any deed made before patent of the land. The Court then concluded that the woman, Emmer Sisney, "cannot be treated as a white woman, for the purpose of conveying an expectancy, and an Indian for the purpose of securing an allotment."

The last case involving a naturalized non-racial member of an Indian nation is In re Hawkins' Estate. Margaret Hawkins, a white naturalized member of the Choctaw Nation died intestate and without issue. The laws of intestate succession would have resulted in an escheat to the state. However, the Oklahoma Supreme Court held that Margaret's husband, a Choctaw citizen, should inherit because of the purpose of Congress to preserve Indian property and the law's disfavor of escheats. And with that, non-racial naturalized members of Indian nations disappeared from the reported cases.

D. Blood Beyond Jurisdiction

In short, when the concept is membership, the interpretation should hinge on whether the term is used as part of congressional power to control the property of Indian tribes, in which case the congressional definition will govern, or whether it is part of a statute designed to strengthen or protect tribal sovereignty, in which case the tribal definition must be ascendant.

Sovereignty is the focus here and particularly the sovereign power to define citizenship. Sovereignty manifests itself in jurisdiction, the authority to make and apply law. If Indian nation sovereignty is second class, perhaps that is due to the racial nature of federal Indian law. In this part a brief account will be offered of the role of blood and descent in that law when the issue is not jurisdiction, but rather federal benefits or disadvantages for the people of the Indian nations. When Congress controls the property of Indian nations, blood is in the foundation.

The federal policy of racial identification of citizens of Indian nations was formalized in the allotment era as field agents prepared membership rolls of Indian nations for entitlement to allotment parcels of land. That policy, however, remains alive and well. In Simmons v. Eagle Seelatsee, the plaintiffs hoped to acquire an interest in an allotment despite a statue which provided that "only enrolled members of the Yakima Tribes of one-fourth or more blood of such tribes shall take by inheritance or by will any interest." The Court held that Congress had full power to determine who gets what and as to blood said:

It is true that in doing so it specified a minimum quantum of Yakima Indian blood, but it seems obvious that whenever Congress deals with Indians and defines what constitutes Indians or members of Indian tribes, it must necessarily do so by reference to Indian blood. What was done here was in line with what Congress had previously done.

. . . Indeed, if legislation is to deal with Indians at all, the very reference to them implies the use of 'a criterion of race'. Indians can only be defined by their race.

Can you imagine: "Whenever Congress deals with Europeans, or citizens of France, Germany, Spain, etc., it must refer to French blood. Germans can only be defined by their race." Blood runs rampant in federal Indian law. The sovereignty of a people will neither be respected nor protected if they are imagined as racial ghosts.

Perhaps the single greatest federal benefit is recognition as an Indian nation. However, after Congress established the Indian Reorganization Act in 1934, the policy of the Department of Interior was to instruct its field agents and lawyers doing IRA work to create "Indian" constitutions defining membership by blood. Consequently, citizenship or membership provisions in Native nation constitutions regularly require a blood-quantum or descent.

The constitutions of four Native nations neighboring Nebraska are good examples of blood based membership.


SECTION 1. The membership of the Omaha Tribe of Nebraska shall consist of all living persons whose names appear on the official roll of the tribe prepared pursuant to Section 1 of the Act of September 14, 1961 (74 Stat. 508).

SECTION 2. Any person possessing aboriginal Omaha blood of the degree of one-fourth or more, and not enrolled with any other tribe of Indians, who is born after September 14, 1961, to a member of the Omaha Tribe of Nebraska, shall be enrolled as a member of the tribe upon the filing by or on behalf of such person, with the secretary of the tribal council, of a membership registration form prescribed by the tribal council. In determining the degree of aboriginal Omaha blood, the blood of any tribe other than Omaha shall be excluded.

SECTION 3. Any person who being a member of the Omaha Tribe of Nebraska becomes a member of any other tribe of Indians shall automatically lose his or her membership in the Omaha Tribe of Nebraska. Any person who loses membership in the Omaha Tribe of Nebraska shall not thereafter be entitled to membership in the Omaha Tribe of Nebraska, except as may be authorized by an ordinance promulgated pursuant to Section 4 of this Article II.

SECTION 4. The tribal council shall have the power to promulgate ordinances, subject to the approval by the Secretary of the Interior, governing future membership, including adoption and loss of membership.


SECTION 1. The membership of the Ponca Tribe of Nebraska shall consist as follows:

(a) All persons listed and their lineal descendants on the tribal rolls of April 1, 1934, January 1, 1935, and June 18, 1965, as compiled by the Bureau of Indian Affairs.

(b) All persons entitled to be listed on the membership roll of June 18, 1965 who were not listed on the roll, notwithstanding the application or appeal deadline dates of P.L. 87-629.

(c) No individual is eligible for enrollment to membership if at the time they make application for membership in the Ponca Tribe of Nebraska they are currently enrolled with another federally recognized Tribe, Band or group unless an application for relinquishment is made with the other Tribe contingent upon enrollment with the Ponca Tribe of Nebraska.

(d) Any person not otherwise eligible for enrollment for membership in the Ponca Tribe of Nebraska shall be entitled to appeal a denial of membership by the Enrollment Committee to the Ponca Tribal Council and submit at such appeal clear and convincing evidence they possess some degree of Ponca Tribe of Nebraska blood. After hearing the appeal, membership shall be granted if the Ponca Tribal Council, by a two-thirds vote, approves the application of said person for enrollment into the membership of the Tribe. The decision of the Ponca Tribal Council shall constitute a final determination.

SECTION 2. The Ponca Tribal Council shall have the power to enact and promulgate resolutions and ordinances governing future enrollment of members and reinstatement of membership into the Ponca Tribe of Nebraska.

SECTION 3. The Ponca Tribal Council shall establish an honorary roster for persons adopted by the Tribe who do not meet the requirements for membership in the Ponca Tribe of Nebraska. Honorary members shall not have the right to vote, hold office, or otherwise exercise the rights or receive benefits of the members of the Ponca Tribe of Nebraska.


SECTION 1. The membership of the Santee Sioux Tribe of Nebraska shall consist as follows:

(a) All persons of Indian blood whose names appear or are entitled to appear, on the official census roll of the Santee Sioux Tribe of Nebraska as of April 1, 1934, with the supplement thereto of January 1, 1935, provided that within one year from the adoption and approval of this constitution and bylaws, additions and eliminations may be made in said roll and supplement by the tribal council subject to the approval of the Secretary of the Interior. Persons enumerated in the "McLaughlin roll" made under the act of March 4, 1917 (39 Stat. 1195), or their descendants, shall not be considered, by virtue of such enrollment, to have established membership in the Santee Sioux Tribe of Nebraska under this section.

(b) All children born to any member of the Santee Sioux Tribe of Nebraska who is a resident of the Santee Sioux Reservation at the time of the birth of said children.

(c) All children of any member who is not a resident of the reservation at the time of the birth of said children may be admitted to membership by the tribal council under ordinances made by the tribal council and subject to review by the Secretary of the Interior, provided such children reside on the reservation at the time they made application.

. . .

SECTION 4. Reinstatement. Request for reinstatement of tribal members shall be made by written application to the membership committee whose decision shall be subject to the approval of the tribal council.

SECTION 5. Adoption. Request for adoption of an Indian who is a nonmember of the tribe shall be made by written application to the membership committee who shall make recommendation to the tribal council. The decision of the tribal council shall be subject to popular vote at the next annual election.

SECTION 6. The right of the issue from the marriage of descendants with nonmembers to membership in this organization shall not apply to those having less than one-fourth degree Indian blood; provided that this section shall not apply to any such issue whose names appear on the official tribal and census rolls as of April 1, 1934, with the supplement thereto of January 1, 1935.


SECTION 2. FILING OF APPLICATIONS FOR ENROLLMENT. Applications for enrollment with the Tribe must be made by all persons whose names appear on the basic roll of April 1, 1934 and the January 1, 1935 supplement and their descendants, on forms authorized by the Tribe and must be accompanied by a birth or/baptismal certificate of the applicant. If a tribal official or the Superintendent has knowledge of a minor or mental incompetent for whom an application has not been filed, such official shall file an application for such person. Applications for minors or mental incompetents who are living with persons other than parents or legal guardians may be filed on their behalf by the person responsible for their care. Applications for enrollment must be filed with the Membership Committee which shall screen or review all applications.

SECTION 3. APPEALS. A person rejected for enrollment shall be advised in writing of the reasons for the action of the Tribal Council and that the decision may be appealed to the Area Director of the Bureau of Indian Affairs, within sixty (60) days following receipt of a rejection for enrollment notice. If the Area Director sustains the decision of the Tribal Council, he shall notify the applicant of his decision and that his decision may be appealed to the Commissioner of Indian Affairs within sixty (60) days following receipt of the Area Director's decision. If the Area Director cannot sustain the decision of the Tribal Council he shall instruct the Tribal Council to place the applicant's name on the roll. The Tribal Council may appeal the decision of the Area Director to the Commissioner. Appeals to the Area Director shall be filed with the Superintendent for forwarding to the Area Director. Appeals from the decision of the Area Director shall be filed with the Area Director within sixty (60) days from the date of notice of his decision for forwarding to the Commissioner.

SECTION 4. BURDEN OF PROOF. The burden of proving eligibility and entitlement for enrollment with the Santee Sioux Tribe of Nebraska shall be upon the applicant. The April 1, 1934 and January 1, 1935 supplement official membership roll of the Santee Sioux Tribe shall be the authoritative document to be used in establishing blood quantum provided that blood quantum as shown on this roll be properly determined by the Tribal Enrollment Clerk with the guidance and assistance of the Area Tribal Enrollment Officer through research of all available Government records and documents.

. . .

SECTION 7. CHILDREN BORN OUT OF WEDLOCK. If an applicant is born out of wedlock, he shall be deemed to possess one-half ( 1/2 ) of the total degree of Santee Sioux Indian blood possessed by one or both parents who are members of the Santee Sioux Tribe, the father shall acknowledge paternity by signing a statement properly witnessed and filed with the Membership Committee. Further, if the father is a member and the mother is a non-member of the Santee Sioux Tribe of Nebraska, the application must be accompanied by a written, properly witnessed acknowledgment of paternity signed by the father of the applicant. Orders by Courts of competent jurisdiction shall also be considered as proof of paternity.

SECTION 8. REINSTATEMENT. That Article II, Section 4, be properly satisfied and provides further that a condition of reinstatement to tribal membership shall be the possession of 1/4 or more of Santee Sioux Indian blood by all applicants.

SECTION 9. ADOPTION. In satisfaction of Article II, Section 5 of the Constitution, "Non-members" shall mean those persons of Santee Sioux ancestry not otherwise able to meet the constitutional membership requirements, provided that a condition of adoption to tribal membership shall be the possession of 1/4 or more of Santee Sioux Indian blood by all applicants.


Title 5- Tribal Government

Article II - Membership

SECTION 1. The membership of the Winnebago Tribe of Nebraska shall consist as follows:

(a) All persons of Indian blood whose names appear, or are entitled to appear, on the April 1, 1934 official census roll of the Winnebago Tribe of Nebraska, or the January 1, 1935 supplement thereto: Provided that those persons who possess Winnebago blood and blood of another tribe have not elected to be enrolled with the other tribe; and provided further that those persons of Indian blood of tribes other than Nebraska Winnebago, whose names appear on the basic roll as "N.E.", shall not be considered as members of the Winnebago Tribe of Nebraska; and provided further that persons of Winnebago Indian blood born after the date of the basic roll and prior to the date of this amendment may be enrolled if by January 1, 1967 they submit to the tribal council a request, in writing, accompanied by such evidence as is necessary to determine their qualifications for enrollment; and provided further that any Indian who may be eligible for membership in the Winnebago Tribe of Nebraska, who has received an allotment of land or received financial benefits as a member of another tribe, shall not be enrolled.

(b) All persons who have been validly adopted as members of the Winnebago Tribe of Nebraska prior to the date this amendment is approved by the Secretary of the Interior.

(c) All children born to a member of the Winnebago Tribe of Nebraska after the date this amendment is approved by the Secretary of the Interior, provided said children possess at least one fourth degree Winnebago Indian blood.

SECTION 2. Any person who has been rejected as a member of the Winnebago Tribe of Nebraska, except those rejected under section 1(b), shall have the right to appeal his case to the Secretary of the Interior within ninety days from the date written notice of the rejection is issued to him/her, and the decision of the Secretary of the Interior shall be final.

5-102 Filing of applications for enrollment. Applications for enrollment with the tribe must be made on forms authorized by the tribe and must be accompanied by a birth or baptismal certificate of the applicant. If a tribal official or the superintendent has knowledge of a minor or mental incompetent for whom an application has not been filed, such official shall file an application for such persons. Applications for minors or for mental incompetents who are living with persons other than parents or legal guardians may be filed on their behalf by the person responsible for their care. Applications for enrollment must be filed with the enrollment committee which shall screen and review all applications.

5-103 Appeals. A person disapproved for enrollment shall be advised in writing of the reasons for the action of the tribal council and that its decision may be appealed to the area director of the Bureau of Indian Affairs within thirty days following receipt of a rejection for enrollment notice. If the area director sustains the decision of the tribal council, s/he shall notify the applicant of his/her decision and that his/her decision may be appealed to the commissioner of Indian Affairs within thirty days following receipt of the area director's decision. If the area director cannot sustain the decision of the tribal council s/he shall instruct the tribal council to place the applicant's name on the roll. The tribal council may appeal the decision of the area director to the commissioner. Appeals to the area director shall be filed with the superintendent for forwarding to the area director. Appeals from the decision of the area director shall be filed with the area director within thirty days from the date of receipt of notice of his/her decision for forwarding to the commissioner.

5-104 Burden of proof. The burden of proving eligibility for enrollment with the Winnebago Tribe of Nebraska shall be upon the applicant. The April 1, 1934 official membership roll and the January 1, 1935 supplement thereto shall be the authoritative document to be used in establishing blood quantum, provided that errors in blood quantum as shown on this roll may be corrected upon submission of substantiating evidence.

. . .

5-107 Children born out of wedlock. If an applicant is born out of wedlock, s/he shall be deemed to possess one half of the total degree of Winnebago Indian blood possessed by one or both parents who are members of the Winnebago Tribe of Nebraska. If both are members of the Winnebago Tribe of Nebraska, the father shall acknowledge paternity by signing a statement properly witnessed and filed with the enrollment committee. Further, if the father is a member and the mother is a non-member of the Winnebago Tribe of Nebraska, the application must be accompanied by a written, properly witnessed acknowledgment of paternity signed by the father of the applicant. Orders by court of competent jurisdiction shall also be considered as proof of paternity.

. . .

5-110 Adoptions. Persons of one fourth or more degree Winnebago Indian blood may be adopted into tribal membership, provided application is made in writing to the tribal council. The tribal council after proper investigation, shall submit to a vote of the tribal members at the next tribal election the names of all applicants for adoption determined to be of at least one fourth degree Winnebago Indian blood. These applicants approved by a majority vote of the tribal membership voting in the election shall be accepted as members of the tribe.

As a result of the Indian Reorganization Act constitutions, even those federal statutes that define Indian beneficiaries as a "member of an Indian tribe," are based on blood or descent.

During the "termination era," the federal government ended federal recognition and the trust relation between itself and the terminated nations. In 1970 President Nixon, convinced of the error of termination policy, urged Congress to restore recognition to terminated nations. The restoration acts in the following years usually mandated descent or blood requirements for the membership of the restored Indian nations. For example, the Menominee restoration legislation required one-quarter blood, and the legislation for the Yseltal del Sur Pueblo of Texas required one-eighth blood. Many other restoration acts required descent.

When Native nations have won claims against the United States, the congressional distribution of judgment funds usually require descent or blood. For example, distribution to the Duwamish required descent from members as the nation existed in 1855. Distribution of funds to the Omaha required one-quarter blood. Interestingly, when the Omaha changed their constitution at this time to a one-quarter blood membership requirement, it resulted in the loss of some two hundred members at a time when the Omaha Nation was struggling against the policies of the termination era.

Blood flows in strange places. In United States v. Curnew, Randolph Curnew appealed his conviction on a charge of being unlawfully present in the United States. Curnew based his defense on a statutory right of "American Indians born in Canada" to pass freely over the federal border. However, the right extends only to "persons who possess at least 50 per centum of blood of the American Indian race." Curnew had no idea of his blood quantum, but would have testified that he believed himself to be and was considered by others "a full blooded Indian."

Curnew retained a cultural anthropologist as an expert witness. The expert testified that Curnew had some blood, but that it would be irresponsible for her to opine as to the quantum of Indian blood without more evidence. The court affirmed Curnew's conviction.

Chief Judge Lay dissented, believing that the blood quantum question should have been left for a jury (Curnew entered a conditional plea of guilty) and raised a pointed question about blood and race:

The initial burden placed on a defendant to even identify the members of a family tree encompassing only three or four generations is prohibitively onerous. However, under the majority's literal reading of the statute, going back even four generations would likely not be sufficient since tracing ancestry that far would hardly begin the process of tracing a "blood line" back to the pre-Columbian age. The majority also leaves unanswered the question of how the racial make-up of a defendant's more distant ancestors is to be determined, even assuming the highly questionable premise that sufficient "bloodline" evidence of his or her ancestors' identities would reasonably be available.

Finally, how about a job with the Bureau of Indian Affairs? In Morton v. Mancari, the United States Supreme Court held that "Indian" employment preferences in the BIA as required by the Indian Reorganization Act were neither repealed by the Equal Employment Opportunities Act of 1972 nor prohibited by the Due Process Clause of the Fifth Amendment. It was, said the Court, not a racial preference, but one designed to further Indian self-government. Yet, the preference eligibility criteria at the time required that an individual must be one-fourth or more Indian blood and a member of a federally recognized tribe.

The Indian Reorganization Act defined "Indian" and the BIA has refined its preference criteria to better match the IRA. Nevertheless, both definitions require at least descent; some blood, but not too much:

For purposes of making appointments to vacancies in all positions in the Bureau of Indian Affairs a preference will be extended to persons of Indian descent who are:

(a) Members of any recognized Indian tribe now under Federal Jurisdiction;

(b) Descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation;

(c) All others of one-half or more Indian blood of tribes indigenous to the United States;

(d) Eskimos and other aboriginal people of Alaska; and

(e) For one (1) year or until the Osage Tribe has formally organized, whichever comes first, effective January 5, 1989, a person of at least one- quarter degree Indian ancestry of the Osage Tribe of Indians, whose rolls were closed by an act of Congress.

In 1976, the Final Report of Task Force No. 9 of the American Indian Policy Review Commission recommended that the preference criteria required by the IRA be changed to require membership and one-fourth degree Indian blood or that there be a two-tiered preference of first members and one-quarter blood; then if none in that tier, members and descent. The proposal argued that just a little blood, descendancy, conflicted with congressional intent and the vision of John Collier, the "prime architect" of the IRA, who had urged that Indian welfare depended on "'preventing the admission to tribal membership of a large number of applicants of small degree of Indian blood." ' As a preference criteria this was to assure that the preferred applicants would have knowledge of their nation and Indian affairs. One might, however, think that domicile in their Indian nation, ability to speak their native language, references from fellow members, or testing of understanding of their nation's history and culture might provide a better gauge than blood.


The Assimilation of Native Juveniles via Federal Policies on Education, Child Welfare and Juvenile Justice

Ryan Seelau

Excerpted from: Ryan Seelau, Regaining Control over the Children: Reversing the Legacy of Assimilative Policies in Education, Child Welfare, and Juvenile Justice That Targeted Native American Youth, 37 American Indian Law Review 63 (2012-2013) (333 Footnotes)


* * *

There are, of course, countless factors that have exacerbated the problems encountered by Native youths, and many of these factors have developed over time. Native American juveniles and their families are the product of centuries of internal and external forces - both positive and negative. For over 200 years, the federal government's policies towards Native Americans have been among the strongest of those forces. These policies have historically been designed to assimilate Native Americans into the dominant culture. While that is no longer the goal of federal policies, inadvertent assimilation does still occur and the legacy of assimilation lives on.

Since the time of European contact all Native Americans have been under constant attack. Originally the attacks came in the form of exposure to lethal diseases, consistent violent conflict, and forced relocation, all of which greatly reduced Native populations. Even after the formation of the United States, some Native nations were completely obliterated, while others suffered large-scale wounds to their cultures, families, and ways of life. Over the course of U.S. history, Native Americans were subject to policies of assimilation and termination, which further weakened many Native nations.

Native American children were not shielded from this history of attempted assimilation. Indeed, Native American juveniles have oftentimes been its intended victims. Focusing assimilative efforts on children makes sense (from a colonizer's point of view) considering that children are the logical target for any policy “designed to erase one culture and replace it with another” because children are “vulnerable to change and least able to resist While it might seem that a government would have to be particularly sinister to target children as a means of assimilating a culture, that is precisely what the United States has done over the past 230 years. As one author stated, “The main thrust of federal policy, since the close of the Indian wars, has been to break up the extended family, the clan structure, to detribalize and assimilate Indian

Whether intentional, federal policy over the past two centuries had the effect of breaking up families, indoctrinating Native children with non-Native values, and pulling apart the very social fabric that allows communities to function healthily. Specifically, the federal government's policies with respect to education, child welfare, and criminal justice have functioned to assimilate Native American youth, predominantly by separating children from their families, their culture, and their nations.

A. Assimilation through Education Policy

1. Missionary Schools

Education is a natural place to begin the process of assimilation because whoever controls the education of children, controls - in large part - what those children know, value, and how they perceive the world around them. The history of assimilation of Native American youth through education policy can be traced back to missionaries who started the first Indian schools. These missionaries used formal education as a means of accomplishing their primary goal, namely converting the Natives to Christianity. To achieve their goal they utilized a tactic that would be used repeated over the next few centuries: separating Native youth from their families and kinship groups so that the children could be “Christianized” and “civilized.” As Vine Deloria recounts, “[a]n old Indian once told me that when the missionaries arrived they fell on their knees and prayed. Then they got up, fell on the Indians, and

For more than 150 years, missionary schools were the “chief agent for spreading Christianity and Western These schools were deliberately devoid of any Native culture and at times prohibited the use of Native languages. For more than a century these schools acted with Congress's political and financial support. Despite experimenting with different types of schools and curricula, the missionary schools never made the large-scale changes for which both Congress and the various religious groups had hoped. They were, however, able to set the tone for future educational policies “from religious indoctrination, to cultural intolerance to wholesale removal of American Indian

2. Federal Boarding Schools

Although missionary groups ran boarding schools for Native American children during most of the nineteenth century, the federal government had an increasingly significant role in Indian education during that same time period. By 1838, the federal government oversaw approximately 2900 students in six manual-training schools and eighty-seven boarding schools. In the 1870s, the number of federal boarding schools (and the number of students they oversaw) began to increase dramatically. According to the Bureau of Indian Affairs (“BIA”), these federal boarding schools were designed to (1) replace native languages with English; (2) replace communal ethics with individualistic ethics; (3) convert students to Christianity; and (4) teach U.S. history, democracy and Manifest Destiny.

Richard Henry Pratt, who was responsible for opening the first off-reservation boarding school in 1879, put it more bluntly stating that the purpose of the school was simply to “kill the Indian and save the To accomplish this, federal boarding schools separated children from their families and natural support systems by placing children in schools outside of reservations. Additionally, they punished any child who clung to his or her culture by using Native languages, observing Native religious traditions, or wearing Native clothing.

Despite the magnitude of the federal government's efforts, the boarding schools failed to assimilate Native children as completely as had been hoped. Due to these failures, some believed the answer lay in the “earlier, longer, and perhaps even permanent removal of American Indian children from their families and Thus, the “Outing System” was created in which a Native child was placed with a white family to completely isolate the child and immerse him or her in white culture. In many respects, the Outing System was little more than state-sponsored kidnapping, and to make matters worse, the living conditions at these schools were often very poor. High morbidity and mortality rates were commonplace, meaning that some Native parents never saw their children return from school. For children who did return after their schooling, they oftentimes felt completely disconnected from their family, friends, and community.

By 1928, the Meriam Report was published and boarding schools came under heavy criticism. The report advised the BIA to abandon assimilation as the goal of education. In 1934 the Indian Reorganization Act attempted to accomplish this by shifting the responsibility of Native education to the states; however, this shift in policy was short-lived. By 1944, a congressional report called for a return to off-reservation boarding schools, and by the 1950s, the federal government's policy of assimilation through the termination of tribes was in full-effect. As late as 1974, over 34,000 Native American children remained in federal boarding schools, which represented more than 17% of all Native youth.

Fortunately, in 1972, Congress passed the Indian Education Act, and, in 1975, the Self-Determination and Education Assistance Act, which were designed to help end federal dominance over Native nations in many areas, including education. In the years following these Acts, Native nations have made significant progress in exercising control over their own education by establishing more than seventy-five tribally-operated primary and secondary schools, more than two dozen community colleges and universities, and a stronger presence in higher education through a variety of programs, such as American Indian Studies. Despite this progress, the damage of generations of assimilative educational policies cannot be completely reversed in one or two generations, and so the legacy of these policies lives on.

B. Assimilation through Child Welfare Policy

Education was not the only tool used to assimilate Native American children. For years, Native children were removed from their homes at alarming rates and given new families - white families - either through adoption or foster care. As might be expected, the decision to remove Native children and place them with white families was not made by Native Americans, but by foreign institutions, such as state and federal courts.

The idea that Native children would be better off living with white families seemed to take its strongest form during the Termination Era, when federal policy was directed at assimilating all Native Americans. During this time, the federal government encouraged private organizations, such as religious groups and state agencies, to get involved in the lives of Native American youths.

An example of such an agency was the Indian Adoption Project, which took place in the 1950s at the urging of the federal government. It was created to place Native children with non-Native parents so they would receive better care. Before it ceased operating, the Indian Adoption Project had placed nearly 400 Native children with white parents. With regards to religious groups, the practices varied greatly between denominations, but at least one denomination displaced more than 5,000 Native children per year in the years preceding the passage of the Indian Child Welfare Act of 1978. Contemporaneous with these types of projects, the BIA began substantially involving the states in Native child welfare decisions by referring the majority of their cases to state agencies and courts. Thus, for the first time in history, state welfare agencies and courts were interacting with significant numbers of Native American children.

Involving states in Native child welfare decisions created jurisprudence that fundamentally misunderstood Native culture and ultimately tried to alter and assimilate it. State courts took it upon themselves to define proper child-rearing techniques and when Native parents did not follow their ideals for child rearing, they removed Native children from the care of their parents. Teachers and social service workers, who were often responsible for initiating these types of cases, frequently agreed with the court's take on proper child-rearing techniques. The problem with this practice was its assumption that there was only one proper method of parenting children. Simply put, it failed to take into account Native concepts of child rearing.

For instance, courts typically believed that only the mother and father of a child constituted a “family” that could properly raise a child. Thus, if the child was not predominantly in the care of these two parents, courts would find neglect or endangerment and remove the child from the home. Although Native communities' parenting techniques vary greatly, their conceptions of family tend to be broader and more inclusive than those associated with the Anglo-nuclear family. Often, Native families are comprised of a “large network of relationships” that includes a “multi-generational complex of people and clan and kinship Thus, a child may literally have dozens or hundreds of relatives who “are counted as close, responsible members of the Courts rarely recognized this concept of family to the detriment of Native children.

The problems associated with state social services and courts handling child welfare cases go beyond mere misunderstanding of Native child-rearing techniques. There is evidence of procedural biases that contributed to Native children displacements. For example, there were due process concerns related to lack of notice to tribal parents, an inability to claim a defense to the court action, and the use of coercion to get Native parents to waive their rights with respect to their children. Additionally, the law was unevenly applied to Native Americans as compared to other races, especially in cases that involved alcohol abuse.

The result of the federal government's implicit - and sometimes explicit - approval of these child welfare policies was the removal and subsequent assimilation of Native children at astounding rates. Conservative estimates indicate that during the 1960s and 1970s, approximately one out of every three Native youth were removed from their homes. The overwhelming majority of these removals resulted in placements outside the Native community, with substantial numbers of children being completely removed from the state in which they lived. The rates of placement outside the home differed from state-to-state, but invariably a Native child was far more likely to have been removed from his or her home than a white child. In some states, the rates for Native American removals were nearly twenty times higher than those of white children. Furthermore, although white adoptions of Native children were commonplace in many states, the reverse situation - where a white child was placed with another race - was virtually nonexistent.

Fortunately, in 1978 Congress passed the Indian Child Welfare Act (“ICWA”) in an attempt to correct the serious problems surrounding Natives in the child welfare system. Congress noted the high rates of child displacement and realized that the long-term survival of Native American peoples and cultures was put in great jeopardy when Native children were raised by non-Natives and denied access to Native culture. Moreover, they recognized that a fundamental aspect of Native autonomy is the ability to participate in child custody proceedings.

ICWA gives Native nations exclusive jurisdiction over child custody cases when the child is residing or domiciled on the reservation. The Act also instructed state courts to transfer any Native child custody cases to tribal courts upon request of the parents or the tribe, unless there was good cause not to. Finally, ICWA laid out a hierarchy of people with whom a Native child should be placed in the event that the child must be removed from the home of his or her parents. The hierarchy in the Act is designed to keep Native children with their extended family when possible, and within the Native nation if there is no suitable extended family available.

The ICWA was passed to remedy an existing problem. Although its impact has been impeded by some court systems, it has accomplished some of its goals. The rate of removal for Native American children from their families has decreased significantly. Unfortunately, the number of Native American children removed from their homes continues to be disproportionately higher than for non-Indian families, and by some measures, as many as 20% of Native children are still being placed outside of their nations. Additionally, the effects of Native American adoptions that occurred before ICWA continue to be felt and have had a lasting impact for many Native nations.

C. Assimilation Through Criminal Justice Policy

The criminal justice system is a powerful assimilative mechanism because criminal laws (and the police and courts that enforce them) define what behavior is and is not acceptable within a community. The criminal justice system is both a mechanism of norm creation and norm reinforcement. When an outside culture controls the criminal justice system of another society, the outside culture can define and promote its own norms within the other society. This is what the United States has done to Native nations for more than a century.

While all Native Americans are affected when the federal government uses the criminal justice system to create, impose and reinforce norms, Native youth are particularly vulnerable. The criminal justice system routinely exposes Native juveniles to foreign courts, and often acts to separate them from their families, cultures, and nations. Native youths frequently end up in state or federal systems. Once in those foreign systems they are treated more harshly than their non-Native counterparts.

Under the current jurisdictional scheme, Native juveniles often fall under the control of the state. For instance, if a youth commits a delinquent act outside of Indian Country, Native nations automatically lack jurisdiction, regardless of where the Native juvenile is domiciled. In such cases, it is the state that regularly has jurisdiction. In such cases Native youths are subject to state law and the state juvenile justice system.

Similarly, the majority of Alaskan Native juveniles are subject to state jurisdiction under the reasoning articulated by the Supreme Court in Alaska v. Native Village of Venetie Tribal When Native nations lack the judicial, financial or treatment resources to properly handle juvenile delinquents, they often transfer jurisdiction to the state and contract for use of the state's judicial and treatment systems. For some Native nations, the alternative to turning their juvenile delinquents over to the state is to merely return them to their homes without any formal processing or treatment whatsoever.

Native juveniles can also fall under federal jurisdiction. For instance, federal courts have jurisdiction over any crime committed in Indian Country that is listed in the Major Crimes Act. Federal courts also have jurisdiction over crimes that fall under the Indian Country Crimes Act, or the Assimilative Crimes Act. These two Acts apply only when a Native individual commits a crime against a non-Native in Indian Country, and even in those circumstances, their applicability is limited. Finally, the Federal Juvenile Delinquency Act (“FJDA”) allows federal courts to assert jurisdiction over Native juveniles who violate any federal law prior to their “eighteenth birthday[,] which would have been a crime if committed by an with Attorney General certification. Certification requires the Attorney General, after investigation, to certify to a federal district court that in that particular case: state courts have no jurisdiction or refuse to assume jurisdiction; or the state does not have adequate services for the juvenile in question; or there is a substantial federal interest in adjudicating the juvenile in the federal system. In such cases, the Attorney General's certification need not address the issue of tribal jurisdiction or tribal juvenile services.

There are therefore multiple ways that a Native juvenile might be pulled into the state or federal system. When this happens, Native nations are unable to apply their “traditions and customary rehabilitative” processes to their own children. Instead, foreign procedures and values are imposed upon Native youth. To complicate matters further, once a juvenile enters an outside system, he or she might end up being placed in an off-reservation residential treatment facility, separated from his or her family and community. This occurs frequently in federal juvenile proceedings because the federal government neither owns nor operates any juvenile detention facilities. Thus, “American Indian youth are often shipped to public and private facilities hundreds of miles from their In such cases Native nations have no say in the decisions that greatly affect their own youths.

Tragically, there is strong evidence that when outside governments make decisions about juvenile delinquents, they do not treat all races equally. Native Americans are disproportionately represented at all levels of the juvenile justice system, indicating systemic biases against Native children. For instance, although Native youth make up approximately 1.4% of the juvenile population, they are arrested at rates significantly higher. If a juvenile continues through the system after arrest, there are two primary options available: diversion or detention (which generally leads to formal At this stage, the more lenient option of diversion occurs 10% less often for Native Americans than it does for whites, and detention occurs 10% more often for Native Americans than whites. Native juveniles are adjudicated at a higher rate than any other race, and after adjudication, Native youth are put on probation at a lesser rate than any other race. Rather, they are more likely to receive the most punitive sanction - out-of-home placement. Native Americans make up 2.3% of all out-of-home placements and they are at least 50% more likely than whites to be removed from their home and placed in a residential treatment facility.

In addition to adjudication, in some circumstances juveniles can be entirely removed from the juvenile justice system and tried as adults. Removing a minor from a juvenile court is very serious as it exposes him or her to possible prison time. Of all races, Native Americans are the most likely to be removed to adult court, and they are 50% more likely to be tried as an adult than their white counterparts. Once a Native youth is tried as an adult, he or she is almost twice as likely as a white youth to end up in a state adult prison. In some states, the rate of Native juvenile imprisonment is more than fifteen times that of whites.

Native youths do not fare any better when removed and treated as adults in federal court. Between 1994 and 2001, more than 60% of all incarcerated youth in the federal system were Native. Some of this over-representation can be explained by the fact that the federal courts have jurisdiction over certain crimes when they occur in Indian Country, but social factors also contribute to the over-representation. Native over-representation in the federal system coupled with harsh federal sentences reveals that Native juveniles are being treated differently, and more severely, due to their status as Indians.

* * *

As indicated, federal policies have routinely separated Native youths from their families, and then allowed non-Native institutions such as schools, non-Native families, juvenile placement facilities, or federal prisons to impose outside norms on those same youth. Generally, these norms have nothing to do with the youth's Native culture and understanding of the world. They obviously harm Native nations' sovereignty and right to preserve their own peoples and cultures; but they also have very real impacts on the families who are victims of these policies.

Humans are social beings by nature. In order to develop properly, young children must have opportunities to establish meaningful attachments to their parents or caregivers. Many Native communities use extended family and kinship relatives to raise a child, ensuring that such attachments occur because even if a “child's parents are not emotionally or physically available, these other extended family or community members may become critical ‘objects of attachment’ for the Research indicates that brain development is hampered without these attachment opportunities. Additionally, a child who has no critical object of attachment is more likely to lack essential social skills (including the ability to feel empathy and remorse), lack the ability to understand his or her own feelings, lack the ability to adjust to change, act defensively, and have a lower IQ than other children.

It is also the case that the strict routines of certain institutions - such as boarding schools - serve to increase a child's dependence on outside decision-makers, thus stunting creativity and independence. When federal policies separate a child from his or her caregiver, the government is traumatizing that child in a way that has the potential to affect the child's physical and emotional development in irreversible ways. Even when separation occurs at older ages - as is sometimes the case with boarding schools or the juvenile justice system - there is evidence that this separation still produces “severe distress” that can interfere with the youth's “physical, mental, and social growth and

Moreover, when children are separated from their families and are raised by outside institutions, they lack the experience of being parented. This, in turn, means that when these separated Native youth become parents themselves, they have no model to draw from, and no amount of formal training can adequately compensate for this deficiency. The tragic nature of this situation is perhaps best-stated by the late Native American psychologist Carolyn Attneave, who writes:

I recall vividly how often each year worried sets of parents would come to the clinic begging for help in securing placement in a boarding school for their eight- or nine-year old child. This puzzled me, and it soon became clear that although it was heartbreaking for them to part with their child, they knew of nothing else to do. Neither they nor their own parents had ever known life in a family from the age they first entered school. The parents had no memories and no patterns to follow in rearing children except for the regimentation of mass sleeping and impersonal schedules that they had known. How to raise children at home had become a mystery.

The act of imposing and reinforcing foreign norms on children who have been separated from their families is just as harmful as the act of separation itself. When Native children are separated from their community, they lose the opportunity to learn about their own culture and heritage. This loss is worsened by the fact that these same children may be learning values that conflict with those of their Native communities, or they may be taught to devalue their own culture altogether. These youth are often reminded that they neither fit in with majoritarian society, nor with their Native communities. This results in feelings of alienation, invisibility, and loss of self-esteem and self-identity. Although difficult to quantify at times, the internal conflict and poor self-image often associated with Native youth who have been raised with conflicting norms may result in serious social problems, including increased unemployment, substance abuse, and suicide.

* * *

This article sought to expose three important aspects of juvenile delinquency in Indian Country. First, it brought into focus a picture of life for Native American juveniles by examining available statistical data. The picture is bleak - Native youth were (and still are) disadvantaged compared to the general population in a wide range of aspects related to quality of life. Second, a partial explanation was offered for the obstacles facing Native youth. Specifically, for more than 200 years, state and federal policies towards Native American youth have been assimilative, particularly in the areas of education, child welfare, and juvenile justice. The effects of these assimilative policies have been devastating.

Although the legacy of assimilation lives on, the third goal of this article was to convey hope. Native nations are beginning to reverse the trends put in place centuries ago by outside governments. The Nation Building Model provides guiding principles that Native nations can utilize to reclaim control over the issues affecting their children. Some Native nations are already putting this model into effect. With respect to Native youth, some Native nations have targeted education, child welfare, and juvenile justice policies in their communities.

Perhaps the most valuable lesson of this article is that in the quest to improve the lives of Native juveniles, one size does not fit all. There is no single solution that will reverse the centuries of assimilative practices against Native children. While the Nation Building Model provides principles that can be applied to a variety of situations, it does not provide a prototypical education, child welfare, or juvenile justice system that can simply be replicated throughout Indian Country. Rather, the Nation Building Model encourages Native nations to meaningfully reflect on the needs of their community and then incorporate its cultural values into each institution created. Simply put, the key to success is the exercise of self-determination: Native nations must make their own decisions about the way they want to live - including the way they want to handle education, child welfare issues, and juvenile justice. If Native nations are willing to reclaim control and design programs that meet their own unique community needs, then the effects of assimilative policies will start to fade and the difference will be seen in the lives of the children and, in turn, throughout the entire nation.



. S.J.D., University of Arizona, 2009; LL.M., University of Arizona, 2006; J.D., University of Iowa, 2005

The Outdated "Blood" Test Used to Determine Indian Status in Federal Criminal Prosecution

Excerpted from:  Quintin Cushner and Jon M. Sands, Blood Should Not Tell: The Outdated Blood Test Used to Determine Indian Status in Federal Criminal Prosecution, 59-APR Federal Lawyer 31 (April, 2012). (44 footnotes omitted)

Blood should no longer play a leading role in determining whether a person is an Indian for purposes of federal criminal jurisdiction. The blood test evokes racial language in our jurisprudence that is outdated and unnecessary in 2012. A better test would discard blood and focus entirely on whether the person is enrolled or eligible for enrollment in a federally recognized Indian tribe.

Perhaps it is because of the way that blood can serve both as a symbol of our shared humanity (If you prick us, do we not bleed?) and our differences (Just one drop of black blood makes a man colored.) that we find it troubling that, for over a century and a half, federal courts have employed a blood test to assess whether a person is an Indian or a non-Indian for the purpose of federal criminal jurisdiction. Currently, in detemining whether an individual is an Indian for this purpose, federal courts examine that person's degree of Indian blood relating to a federally recognized tribe and his or her tribal or governmental recognition as an Indian.

In this article, we trace the use of the blood test in determining Indian status from its origins to its current applications. Ultimately, we conclude that, as applied by federal courts, the use of a blood test as a factor that determines Indian status both harks back to antiquated views and risks violating the Equal Protection Clause of the U.S. Constitution. Given these concerns, we believe that the use of the blood test for purposes of federal law should be relegated to the dustbin of history. Instead, tribal or governmental recognition of an individual as an Indian--only one prong of the two-pronged test that is currently used to determine a person's status as an Indian--is sufficient.

To Be or Not to Be: Who Is an “Indian Person”?

Daniel Donovan and John Rhodes

Reprinted from: Daniel Donovan and John Rhodes, To Be or Not to Be: Who Is an indian Person?, 73 Montana Law Review 61 (Winter 2012) (301 footnotes omitted).


The United States Supreme Court and the Ninth Circuit Court of Appeals have accurately observed: The exercise of criminal jurisdiction over Indians and Indian country is a complex patchwork of federal, state, and tribal law, which is better explained by history than by logic. Federal jurisdiction for Indian country crimes requires proof that the defendant or the victim is an Indian. Despite this jurisdictional requirement, Congress has not defined Indian. For purposes of federal criminal jurisdiction, courts have struggled to fill this void. Under federal criminal law, who is an Indian is frequently a difficult question to answer--at times, shockingly difficult. In our opinion, this complexity reflects the uneasy historical and current relationship between the United States and Native America. The resulting caselaw embodies this tension, highlighted by a circuit split over tests for determining who is an Indian.

This article reviews the origins and current state of this caselaw, identifies practice pointers for litigants, and discusses ideas for refining the law. With respect to our ideas, we believe that a choice needs to be made: should the law be more rigid and, thus, more easily applied? Or should the law reach even further to reflect the reality that who is an Indian can be a frustratingly complex issue?

Passed in 1885, the Major Crimes Act, 18 U.S.C. 1153, established federal criminal jurisdiction over specified serious crimes committed in Indian country solely by Indian defendants. The crimes include murder, manslaughter, assault, sexual abuse, and arson. The General Crimes Act, 18 U.S.C. 1152, provides federal criminal jurisdiction over federal enclave crimes in Indian Country. [U]nder the Indian General Crimes Act, the criminal laws of the United States apply to offenses committed in Indian country by non-Indians against Indians and by Indians against non-Indians. As the Tenth Circuit summarized, the General Crimes Act establishes federal jurisdiction over interracial crimes only. If neither the defendant nor the victim is an Indian, even where the crime occurs in Indian country, there is no federal jurisdiction. Neither 1152 nor 1153 define Indian. The absence of a definition has resulted in an ongoing judicial effort to determine who is, and who is not, Indian. The courts clearly, indeed expressly, struggle with this task.

The differing burdens under 1152 and 1153 illustrate the inherent challenges of federal Indian criminal law. If the government charges a crime under the Major Crimes Act ( 1153), it must prove the defendant's Indian status beyond a reasonable doubt. But in a General Crimes Act prosecution ( 1152), the defendant must meet the burden of proving his or her Indian status to the factfinder by affirmatively producing evidence, which if met, requires the government to refute Indian status beyond a reasonable doubt.

Congress passed the Major Crimes Act in response to Ex parte Crow Dog, where the United States Supreme Court overturned the federal court conviction of Chief Crow Dog, who was sentenced to death in 1884 for the murder of Chief Spotted Tail on the Rosebud Indian Reservation in Dakota Territory. The Court reasoned that the tribe's authority to prosecute such an offense had not been sufficiently abrogated by an act of Congress. As a result, Crow Dog was released from custody. Congress's legislative response limited the sovereignty of Indian tribes by removing tribal jurisdiction over certain serious offenses in Indian country. The underlying theory was that Indian tribes were not competent to deal with serious issues of crime and punishment. The Court has since explained that the Major Crimes Act was a carefully limited intrusion of federal power into the otherwise exclusive jurisdiction of the Indian tribes to punish Indians for crimes committed on Indian land. Nonetheless, for specified crimes, the Major Crimes Act created federal criminal jurisdiction over Indian defendants in Indian country. Prior to the Major Crimes Act, Congress established federal jurisdiction over federal enclaves generally in 1817 through passage of the General Crimes Act. Although passed to provide federal jurisdiction over federal enclaves generally, the General Crimes Act works together with the Major Crimes Act to broadly provide federal jurisdiction over Indian Country.

A defendant's Indian status is an essential element of a 1153 Major Crimes Act offense, which the government must allege in the indictment and prove beyond a reasonable doubt at trial. In years past, as a matter of custom and practice, the government could establish the Indian status element by simply proving that the defendant was an enrolled member of a federally recognized Indian tribe. However, over time, as racial intermarriage by subsequent generations of Indians has diluted the amount of Indian blood in many people of Indian descent, tribal membership is no longer the only determinative factor, and some tribal members may not even consider themselves to be Indians. The ever-evolving domestic American diaspora confounds this complexity.

The question of who is an Indian has not captured the attention of the Supreme Court since the Antebellum Period, fostering circuit splits and biting dissents during the 21st century. Indeed, two of the most prominent Indian country circuit splits conflict over the fundamental issue: how to define Indian. Congress's recent focus on criminal justice in Indian country promises more prosecutions. And whether the executive branch prosecutes under the Major Crimes Act or the General Crimes Act, Indian status--be it of the defendant or the victim--is a jurisdictional element.

II. Definition of Indian Person--The Rogers Test

Whether a person is Indian is a political, not a racial, determination. Federal criminal jurisdiction over Indians is not over a discrete racial group but rather is based upon membership in quasi-sovereign tribal entities whose lives and activities are governed by the [Bureau of Indian Affairs] in a unique fashion. There is no statutory definition of Indian for determining the Indian status element under the federal criminal jurisdiction statutes, which has led one commentator to observe: the question of Indian status for purposes of criminal jurisdiction is perplexing. And an appellate court lamented the result as a bewildering maze of rules.

In general, guided by a two-part test derived from the 1846 Supreme Court case United States v. Rogers, the federal appellate courts have defined the term Indian as an individual who has Indian blood and who is regarded as an Indian by his or her tribe or Indian community. In contrast to Crow Dog, where an Indian murdered an Indian, Rogers involved a white man, Rogers, who was charged with murdering a white man. The alleged location of the murder--Cherokee country--created the case's controversy. The defendant maintained that because he and the victim lived in Cherokee country as citizens of the Cherokee nation, the courts of the United States lacked jurisdiction. The Supreme Court started its analysis with an overview of the discovery doctrine and domestic dependant nation status of Indian tribes first established in Johnson v. M'Intosh and Cherokee Nation v. Georgia, respectively. From our current perspective, the racist underpinnings of these legal doctrines reverberated in the language of Rogers, as did Manifest Destiny:

It would be useless at this day to inquire whether the principle thus adopted is just or not . . . . [T]he United States . . . has exercised its power over this unfortunate race in the spirit of humanity and justice, and has endeavored by every means in its power to enlighten their minds and increase their comforts, and to save them if possible from the consequences of their own vices.

From there, and likely in conflict with Crow Dog, the Court in Rogers reasoned that tribes residing within the territorial limits of the United States, and not within state jurisdiction, are subject to Congressional jurisdiction no matter whether the offender be a white man or an Indian. In contrast to the painstaking statutory and treaty analysis in Crow Dog, the Court in Rogers summarily concluded that an 1834 Act of Congress, entitled An act to regulate trade and intercourse with the Indian tribes, and to preserve the peace of the frontiers, provided jurisdiction over the defendant. While that act jurisdictionally exempted Indian-on-Indian crimes, the Court ruled that it [is] very clear, that a white man who at mature age is adopted in an Indian tribe does not thereby become an Indian . . . .

In conflict with the current jurisprudential definition of Indian as a political concept, the Court rooted its conclusion in race, invoking the concept of Indians born and repeatedly using the word race to define Indians. Perhaps reflecting prevailing attitudes, but regardless continuing its race-based analysis, the Court added that Congress could not have intended to include white men adopted into Indian tribes as exempt from jurisdiction: It can hardly be supposed that Congress intended to grant such exemptions, especially to men of that class who are most likely to become Indians by adoption, and who will generally be found the most mischievous and dangerous inhabitants of the Indian country. Rogers emphatically concluded its racial analysis, stating: He was still a white man, of the white race, and therefore not within the exception in the act of Congress. More recent caselaw demonstrates that Indian status is not so black and white now.

In Rogers, the Court ruled that while there was federal jurisdiction generally, the precursor statute to 18 U.S.C. 1153 did not apply to a white man who had been adopted into an Indian tribe. While the later-gleaned test from Rogers is not crystal clear in the decision itself, the appellate courts have determined that Rogers suggested the generally followed two-part test, which considers (1) the degree of Indian blood and (2) tribal or governmental recognition as an Indian. What is clear is that the United States Supreme Court has not revisited the issue since the time of Crow Dog, and the lower courts have labored over it. In the meantime, the seeming clarity with which the Rogers Court could identify an Indian has been fogged by more recent American dynamics, such as ever-increasing inter-marriage, social and geographic mobility, cross-cultural understanding and respect, and more assertive self-identity. While generally considered positive changes, these developments have complicated the legal issue of who is an Indian.

III. Circuit Split Over the Expanded Rogers Test

In implementing the Rogers test, the appellate courts have adopted and expanded the test for determining federal criminal jurisdiction, resulting in a split between the Eighth and Ninth Circuits over the definition of Indian.

A. Ninth Circuit's Rogers Test

The Ninth Circuit adopted a version of the Rogers test from the Eighth Circuit and, by adding to it, created a circuit split. In a series of cases from Montana reservations, beginning with United States v. Bruce, followed by United States v. Cruz, and further refined by United States v. Maggi, the Ninth Circuit first adopted then modified the Eighth Circuit's approach to determining Indian status. These cases culminated in the following test, since adopted as a Model Jury Instruction:

In order for the defendant to be found to be an Indian, the government must prove the following, beyond a reasonable doubt:

First, the defendant has descendant status as an Indian, such as being a blood relative to a parent, grandparent, or great-grandparent who is clearly identified as an Indian from a federally recognized tribe; and

Second, there has been tribal or federal government recognition of the defendant as an Indian.

Whether there has been tribal or federal government recognition of the defendant as an Indian is determined by considering four factors, in declining order of importance, as follows:

1. tribal enrollment;

2. government recognition formally and informally through receipt of assistance reserved only to Indians;

3. enjoyment of the benefits of tribal affiliation; and

4. social recognition as an Indian through residence on a reservation and participation in Indian social life.

In Bruce and Cruz, the Ninth Circuit adopted this test from the Eighth Circuit and modified its application, ultimately creating a conflict between two of the three circuits that encompass the vast majority of the Country's Indian reservations.

1. United States v. Bruce

The federal government charged Violet Bruce for simple assault of an Indian child in violation of 18 U.S.C. 1152 and 113(a)(5) and gained a conviction despite her objection that she was an Indian and thus should have been charged under 1153. Bruce resided on the Fort Peck Indian Reservation in northeastern Montana, where the alleged offense occurred. Before and during trial, Bruce's defense centered on her Indian status. She offered evidence that she was 1/8th Chippewa, her mother was an enrolled member of the Turtle Mountain Tribe of Oklahoma, she was born on a reservation, and that she currently lived on the Fort Peck Indian Reservation. She also offered evidence showing that she had been treated by Poplar Indian Health Services, she had been arrested by tribal authorities, and the Fort Peck Tribal Court had treated her as an Indian child under the Indian Children Welfare Act, 25 U.S.C. 1901. The district court rejected her pretrial, trial, and post-trial motions to dismiss and refused to submit the issue to the jury, reasoning that Bruce failed to meet her burden of production to raise her Indian status as an affirmative defense. Following her conviction, she appealed on the basis of her asserted Indian status.

The Ninth Circuit reviewed Bruce's Indian status de novo as a mixed question of law and fact. The court began its discussion with a historical review of federal criminal jurisdiction in Indian Country, including the advent of the Major Crimes Act and the General Crimes Act. It noted that federal crimes of general applicability, such as federal drug offenses, apply to Indians. Further, it reviewed the jurisdiction of tribal courts under the Indian Civil Rights Act. The court summarized: The one point that emerges with clarity from this otherwise bewildering maze of rules is that the question of who is an Indian bears significant legal consequences.

After the circuit court discussed the history of federal jurisdiction over Indians in Indian country, it turned to the procedural nuances of litigating the issue of Indian status. Relying on its precedent, the Ninth Circuit identified Indian status as an affirmative defense. A defendant must properly raise the Indian status issue and produce enough evidence of her Indian status to permit a fact-finder to decide the issue in her favor. The court noted that no court has defined that quantum of evidence. Once the defendant satisfies the evidentiary threshold, however, the burden of persuasion shifts to the government to prove the nonexistence of Indian status beyond a reasonable doubt.

The court then turned to the crux of the issue--who is an Indian? The court started with the Rogers test, the first prong of which requires only some Indian blood, meaning evidence of a parent, grandparent, or great-grandparent who is clearly identified as an Indian . . . . The Ninth Circuit next considered the second prong, adopting a four-part test from the Eighth Circuit, which focuses on whether tribal or federal governments recognize the defendant as an Indian. The court reviewed the four-part test, which, at the time, the Eighth Circuit analyzed in declining order of importance. The four-part test considers: (1) tribal enrollment; (2) government recognition formally and informally through receipt of assistance reserved only to Indians; (3) enjoyment of the benefits of tribal affiliation; and (4) social recognition as an Indian through residence on a reservation and participation in Indian social life.

Turning to the facts of the case, the Ninth Circuit acknowledged that Bruce had presented evidence of Indian blood and recognition as an Indian. The court reviewed her 1/8th Chippewa Indian blood, her mother's and children's tribal enrollment, her life on the reservation, her participation in Indian ceremonies, her treatment by Indian hospitals, and her treatment as an Indian in tribal court. The Ninth Circuit disapproved of the district court's reasoning that because Bruce failed to produce evidence that the federal government recognized her as an Indian and failed to produce evidence that she was an enrolled tribal member, she did not meet her burden for the affirmative defense.

The court rejected the formalistic nature of the district court's adjudication, which demanded enrollment or federal recognition and emphasized instead that government or tribal recognition suffices, reflecting Indian tribes' sovereign authority to determine their own membership. Honoring that sovereignty, albeit a highly qualified sovereignty, plays a central role in federal Indian law generally and the Indian question particularly. The Supreme Court in Crow Dog opined:

The tribes for whom the act of 1834 was made were those semi-independent tribes whom our government has always recognized as exempt from our laws, whether within or without the limits of an organized State or Territory, and, in regard to their domestic government, left to their own rules and traditions, in whom we have recognized the capacity to make treaties, and with whom the governments, State and national, deal, with a few exceptions only, in their national or tribal character, and not as individuals.

Given the court's explication of the Rogers test and the reservation-based evidence adduced by Bruce, the Ninth Circuit concluded that she met her burden of production to present her defense to a jury, emphasizing that the burden is one of mere production. The government then claimed harmless error and argued that Bruce was guilty under either 1152 or 1153, thus her Indian status was effectively irrelevant because the government proved she committed the assault it charged. The Ninth Circuit rejected the harmless error claim for an equally practical reason:

By prosecuting Bruce under 1152, rather than 1153, the government did not have to prove that Bruce was an Indian. In so doing, the government released itself of its obligation to prove an element of the offense beyond a reasonable doubt. . . . Absent proof of Bruce's Indian status, there is no federal crime under 1153.

The court concluded its decision by noting a gap in the statutory framework:

We note, however, that this statutory framework creates an obvious and troubling conundrum. It is entirely probable that the government may be simultaneously unable either to prove or disprove a claim of Indian status, effectively foreclosing conviction under either statute. This is especially likely given that the burden of proof required for a defendant to place Indian status at issue in a 1152 case may be as low as a preponderance, whereas the burden of proof required for the government to both disprove Indian status under 1152 and to prove Indian status under 1153 is proof beyond a reasonable doubt.

Despite this conundrum, Congress has not acted to remedy it. The Ninth Circuit returned to the perplexing Indian status issue a few years later.

2. United States v. Cruz

The Ninth Circuit next fully addressed the Indian status issue in United States v. Cruz. The court began its decision by noting a striking feature of who is an Indian:

At first glance, there appears to be something odd about a court of law in a diverse nation such as ours deciding whether a specific individual is or is not an Indian. Yet, given the long and complex relationship between the government of the United States and the sovereign tribal nations within its borders, the criminal jurisdiction of the federal government often turns on precisely this question--whether a particular individual counts as an Indian--and it is this question that we address once again today.

The court stated that Bruce had distilled a specific test to determine Indian status. The Cruz court then applied that test to the facts before it. Cruz was 29/128 Blackfeet Indian and 32/128 Blood Indian. He had lived on the Blackfeet Indian Reservation in Browning, Montana for three or four years as a child; otherwise, Cruz did not live on a reservation until shortly before the incident resulting in his prosecution.

Following an altercation at a Browning hotel, the government charged Cruz with assault resulting in serious bodily injury, pursuant to 18 U.S.C. 1153 and 113(a)(6). At trial, Cruz contested his Indian status, including moving for a judgment of acquittal at the close of the government's case. Cruz was convicted by a jury on all charges. On appeal, Cruz challenged the sufficiency of the evidence that he was an Indian under 1153 and the district court's jury instructions regarding Indian status. Because Cruz testified in his own defense but did not renew his motion to dismiss following his defense, the appellate court reviewed for plain error.

Cruz conceded that his Indian blood satisfied Bruce's first prong, so the appeal focused on the second prong and its four factor test in declining order of importance. The court stressed that satisfaction of the first factor--tribal enrollment--is not dispositive of Indian status and thus, focused on the remaining three Bruce factors. The court listed the relevant facts: (1) Cruz was not an enrolled tribal member; (2) his descendent status entitled him to use Indian Health Services, some educational grants, and fish and hunt on the reservation; (3) he never utilized those benefits; (4) he lived on the reservation as a young child but did not do so again until he rented a hotel room in Browning shortly before the offense; (5) Cruz was once prosecuted in tribal court with an unknown result and his descendent status subjected him to the tribal court's jurisdiction; (6) Cruz attended a public school on the reservation and was a firefighter for the Bureau of Indian Affairs (both the school and the job were open to non-Indians); and (7) Cruz did not participate in Blackfeet cultural events, did not vote in tribal elections, and did not have a tribal identification card.

The Ninth Circuit ruled that it is clear that Cruz does not satisfy any of the four Bruce factors. In doing so, it repeatedly emphasized what the dissent condemned--the hierarchy of import of the four factors. The court promoted strict construction because 1153creates a carefully limited intrusion of federal power into the otherwise exclusive jurisdiction of the Indian tribes . . . . The court also highlighted that under Bruce, the extent to which an individual considers himself an Indian . . . is most certainly relevant to determining his Indian status.

In light of these considerations, the court held: Because the evidence viewed in the light most favorable to the government does not demonstrate that Cruz is an Indian or that he meets any of the Bruce factors, no rational trier of fact could have found that the government proved the statutory element of 1153 beyond a reasonable doubt. The court thus vacated Cruz's conviction and remanded to the district court with instructions to grant the motion for judgment of acquittal.

Before announcing its holding, the court emphasized the procedural posture in Cruz--by charging a crime under 1153, the government obligated itself to prove Cruz's Indian status beyond a reasonable doubt. Bruce, in contrast, involved a charge under 1152, thus requiring Bruce to meet the burden of production to raise the affirmative defense of Indian status, which the government must then disprove beyond a reasonable doubt.

The court's holding relieved it of reaching Cruz's claim that the district court improperly instructed the jury regarding Cruz's Indian status. The court nonetheless availed itself of the opportunity to instruct that the words in declining order of importance should, as a matter of course, always be included in a Bruce instruction, as part of the four-factor test delineating Rogers' second prong. Other circuits have not adopted hierarchical factors.

B. Eighth Circuit's Rogers Test

After Bruce and Cruz, the Eighth Circuit announced a similar but distinct test in United States v. Stymiest. The government indicted Stymiest of assault resulting in serious bodily injury in violation of 18 U.S.C. 1153 and 113(a)(6). On appeal, Stymiest challenged his Indian status, raising three issues. The Eighth Circuit began by noting that the Rogers test was the generally accepted test for defining Indian and that four circuits and state courts apply this test. Deeming the Indian status issue an element of a 1153 crime, the court first ruled that the Indian status issue cannot be resolved by a motion to dismiss and instead must be submitted to the jury. Thus, the court rejected Stymiest's appeal of the trial court's order denying his motion to dismiss.

The Eighth Circuit next addressed Stymiest's challenge to a jury instruction. The district court instructed the jury on the second Rogers prong--recognition by a tribal or federal government--using a nonexclusive five-factor test, in the following instruction:

The second element is whether Matthew Stymiest is recognized as an Indian by the tribe or by the federal government or both. Among the factors that you may consider are:

1. enrollment in a tribe;

2. government recognition formally or informally through providing the defendant assistance reserved only to Indians;

3. tribal recognition formally or informally through subjecting the defendant to tribal court jurisdiction;

4. enjoying benefits of tribal affiliation; and

5. social recognition as an Indian through living on a reservation and participating in Indian social life, including whether the defendant holds himself out as an Indian.

It is not necessary that all of these factors be present. Rather, the jury is to consider all of the evidence in determining whether the government has proved beyond a reasonable doubt that the defendant is an Indian.

Stymiest objected to the instruction, arguing that the proper instruction required the factors to be considered in declining order of importance and that the court's instruction included two irrelevant factors--tribal recognition by tribal court jurisdiction and holding himself out as an Indian. The Eighth Circuit ruled that there is no single correct way to instruct a jury on this issue. The court thus split from the Ninth Circuit in Cruz, which interpreted Bruce to require a jury to be instructed using the four-factor test in declining order of importance.

The court solidified its conflict with Bruce and Cruz by further explaining that the factors listed may prove useful, depending upon the evidence, but they should not be considered exhaustive. Nor should they be tied to an order of importance, unless the defendant is an enrolled tribal member, in which case that factor becomes dispositive. The court thus split from Bruce by not adopting the declining order of importance rule and from Cruz by ruling that tribal membership is dispositive of Indian status.

As for the two factors Stymiest argued were legally irrelevant, the court deemed them relevant based on the facts of the case. And then the court held that the district court did not abuse its discretion in rejecting Stymiest's objection to the instruction. The Eighth Circuit offered:

We have some concern that the instruction given would permit a jury to find Indian status without finding, as the second part of the Rogers test requires, that the defendant be recognized as an Indian by the tribe or by the federal government. Holding oneself out as an Indian by submitting to tribal court jurisdiction or seeking care at a tribal hospital or participating in tribal community activities is relevant to being recognized by the tribe, but it is not otherwise sufficient to satisfy the political underpinnings of the Rogers test. Compare United States v. Cruz, 554 F.3d 840, 848 (9th Cir. 2009) (minimal participation in Indian social life alone may be insufficient). However, this objection was not raised, and thus we have no difficulty concluding that the instruction as a whole was not an abuse of the district court's discretion.

This observation indicates there may be yet another circuit split: in the Ninth Circuit, the fact-finder could rely solely on the defendant's participation in Indian activities to find Indian status.

The Eighth Circuit finally denied Stymiest's third argument that insufficient evidence supported the jury's conclusion that he was an Indian under 1153. The court first noted that Stymiest possessed the requisite Indian blood because his grandfather was an enrolled member and a medicine man in the Leech Lake Band of Ojibewe Indians. The court then ruled that the jury properly considered the second prong of the Rogers test to be satisfied: Stymiest repeatedly submitted to tribal arrests, he reported to the Indian Health Services clinic that he was an Indian, receiving treatment six times, five times in an emergency room and one follow-up visit to an outpatient clinic, where he identified himself as an enrolled member of the Leech Lake Band. He also lived on an Indian reservation, and presented himself as an Indian to his girlfriend and while socializing with Indians. He thus held himself out as an Indian and received tribal recognition. The court finally acknowledged that Stymiest was not enrolled as a tribal member, explaining that enrollment is not necessary to establish Indian status.

C. Tenth Circuit's Rogers Test

In a series of appeals, the Tenth Circuit did not initially expand the Rogers test and instead limited its analysis of Indian status to whether the defendant (1) had some Indian blood and (2) was recognized as an Indian by either a tribal or the federal government. In the process, the Tenth Circuit acknowledge[d] that the issue of how one ought to determine Indian status under the federal statutes governing crimes in Indian country is extraordinarily complex and involves a number of competing policy considerations.

In United States v. Drewry, the defendant challenged the government's satisfaction of the second Rogers prong requiring proof that the victims were recognized as Indians. A jury convicted Drewry of aggravated sexual abuse of children, abusive sexual contact with a child under the age of twelve, and assault against a victim under the age of sixteen. The government brought the charges under 1152 because the victims each had one-quarter Indian blood. The defendant contended that the victims were not recognized as Indians.

To resolve that claim, the Tenth Circuit turned to the four-factor test first outlined by the Eighth Circuit in Lawrence, and then modified by the Ninth Circuit in Bruce and Cruz. Although the victims were not enrolled tribal members at the time of the offense, the court ruled that tribal membership was not the exclusive means of establishing Indian status. It then recounted facts that satisfied the three remaining factors: the children received medical care from Indian Medical Services, attended a summer camp open only to Comanche Indians (after the Comanche tribal chairman indicated to camp officials that the children were Comanche), attended pow-wows, and when the sexual abuse was reported the children were taken into tribal--not state--custody. The Tenth Circuit thus held that, viewing the evidence in the light most favorable to the government, a rational jury could conclude that the government established the victims' Indian status beyond a reasonable doubt and, therefore, the district court did not err in denying the defendant's motion for judgment of acquittal.

D. Seventh Circuit's Rogers Test

Although not generally recognized as an Indian country circuit, the Seventh Circuit considered the Indian status issue in the 1984 case, United States v. Torres. There, because the defendants were members of the Menominee Tribe, the court utilized the Rogers test and held that the district court properly instructed the jury and that it would not disturb the jury's finding that the defendants were Indians. Citing Rogers, the court stated that the following instruction complied with federal law:

To be considered an Indian, a person must have some degree of Indian blood, and must be recognized as an Indian. In considering whether a person is recognized as an Indian, you may consider such factors, whether a person is recognized as an Indian by an Indian tribe, or society of Indians. Whether a person is recognized as an Indian by the federal government, whether a person resides on an Indian reservation, and whether a person holds himself out as an Indian. It is not necessary that all of these factors be present, rather you as jurors must consider the totality of circumstances in determining as a factual matter whether each defendant is an Indian.

The Seventh Circuit has not revisited this issue since Torres. Given its relative lack of reservations and Wisconsin's subjection to Public Law 280, this inaction is not surprising.

E. Summary of Circuit Split(s)

The Eighth and Ninth Circuits conflict over the most basic question: How is Indian defined? According to the Eighth Circuit, there is no single correct way to instruct a jury on this issue. The Eighth Circuit utilizes a non-exclusive, five-factor list when determining whether a person has been recognized by a tribal or federal government under the second prong of the Rogers test. Conversely, the Ninth Circuit requires a rigid four-factor test applied in declining order of importance. Furthermore, tribal membership is dispositive in the Eighth Circuit--an enrolled tribal member, as a matter of law, satisfies the multi-factor test, while it is not dispositive in the Ninth Circuit.

At least two other potential splits may lurk in the caselaw. In the Eighth Circuit, [h]olding oneself out as an Indian by submitting to tribal court jurisdiction or seeking care at a tribal hospital or participating in tribal community activities is relevant to being recognized by the tribe, but it is not otherwise sufficient to satisfy the political underpinnings of the Rogers test. In the Ninth Circuit, the extent to which an individual considers himself an Indian . . . is most certainly relevant to determining his Indian status. While not fully developed, this law may further split into a ripened conflict: both circuits consider the individual's self-image as an Indian or non-Indian relevant to the Rogers analysis, but only the Eighth Circuit requires objective criteria beyond self-direction for discerning whether the individual believes he or she is Indian.

Another conflict may exist over the self-imposed burden attendant to the government's charging decision. Sometimes, the government must choose to prosecute under the Major Crimes Act, 1153, or the General Crimes Act, 1152. In the case of Bruce, [b]y prosecuting Bruce under 1152, rather than 1153, the government did not have to prove Bruce was an Indian. In so doing, the government released itself of its obligation to prove an element of the offense beyond a reasonable doubt. The Ninth Circuit thus refused a harmless error claim by the government, by declining to substitute a 1153 conviction for the 1152 conviction from the jury. Conversely, applying plain error review, the Eighth Circuit ruled in United States v. White Horse:

[R]egardless of which statute applied (one of them certainly did) Mr. White Horse was guilty of a federal crime because he, like everyone else, is either an Indian or he is not. . . . In other words, we believe that the situation here is the same as it would be if we were dealing not with two statutes but with a single one that provided that it applied whether or not the defendant was an Indian.

That sentiment diverges from the Ninth Circuit's, and it does not seem to be rooted in the differing procedural posture of the government's harmless error claim in Bruce, as opposed to the defendant's plain error claim in White Horse. Nonetheless, unlike the definition of an Indian, a clear circuit conflict inherent in the government's charging decision has not yet crystallized.

IV. Examples of Case-by-Case Analysis: How Does It Work in Practice?

This morass of history-derived law matters today. Indians, non-Indians, defense attorneys, prosecutors, and judges have inherited this difficult framework for defining Indian. At a practical level, the Ninth Circuit summarized the issue's vexing perplexity: We have little guidance as to the quantum of evidence necessary to sustain Indian status jurisdiction. Sorting through the handful of circuit cases addressing the issue simply underscores the need for case-by-case analysis and the necessity of invoking the Jackson v. Virginia standard, as we do in other criminal cases. Prosecutions in Montana's federal district court demonstrate the adjudicatory confusion and the case-by-case, fact-by-fact status of the law. The Ninth Circuit's affirmances of the district court outcomes on the Indian issue demonstrate the primacy of persuading the fact-finder on the Indian issue.

A. Gordon Mann

Gordon Mann, who was charged with committing aggravated sexual abuse under 1153(a) (Count I) and aggravated sexual abuse under 1152 (Count II) on the Blackfeet Indian Reservation in Montana, was an enrolled member of the Little Shell Tribe of the Chippewa Cree. The Little Shell Tribe is not a federally recognized tribe. Mann's enrollment record shows that his degree of Indian blood was 10/64 Chippewa and 11/64 other Indian blood for a total of 21/64 Indian blood.

Mann held himself out to be an Indian person. He lived and hunted on the Blackfeet Indian Reservation. He qualified for, and had received, free healthcare (limited to emergency and urgent care) from the Indian Health Services hospital on the Blackfeet Indian Reservation, which is reserved only to Indians or tribal members on the Blackfeet Reservation. Mann also participated in Indian social, cultural, and religious events, such as beading, pow-wows, eating fry bread, and ceremonial dancing with members of the Blackfeet Tribe. He was invited by members of the Blackfeet Tribe to attend Indian religious ceremonies such as sweats.

The district court submitted a bifurcated verdict form to the jury because 1152 and 1153 were alternative charges for the same conduct.Section 1153 would apply if the jury determined Mann was Indian, but if not, the jury could still convict under 1152 if they determined that the victim was Indian. The jury determined that Mann was an Indian person, thus finding him guilty on Count I under 1153. The jury, therefore, did not reach a verdict on Count II under 1152.

On appeal, the Ninth Circuit held that these facts did not prove that Mann was an Indian person beyond a reasonable doubt. Applying the first prong of the Bruce test, the Ninth Circuit found there was no evidence that Mann had any blood from a federally recognized tribe. The court ruled that Mann cannot meet the first prong of Bruce, and his conviction must be vacated.

B. Shane Maggi

Shane Maggi, who was charged with committing two counts of assault with a dangerous weapon under 1153 and two related firearms offenses under 18 U.S.C. 924(c) on the Blackfeet Indian Reservation, was not an enrolled member of a federally recognized tribe. His Indian blood came from his mother who was an enrolled member of the Blackfeet Tribe. Maggi had 3/64 Indian blood consisting of 1/64 Blackfoot and 1/32 Cree. Thus, he had only 1.5 percent Blackfeet blood and was not an enrolled member of the Blackfeet Tribe.

Maggi was not eligible to be a member of the Blackfeet Tribe because, after August 30, 1962, a person must have 1/4 Blackfeet blood to be an enrolled member of the Blackfeet Tribe. Any person who has less than 1/4 Blackfeet blood and who has an enrolled member parent is only considered a descendant. As a descendant, Maggi was entitled to receive (1) medical treatment from the Indian Health Service, (2) the opportunity to obtain a license to hunt and fish on the reservation, and (3) the opportunity to apply for college grants from the tribe. On one occasion, he received treatment at the Blackfeet Community Hospital, but he never applied for a hunting or fishing license or any college grants. Maggi was also prosecuted in the Blackfeet Tribal Court on several occasions. However, in that court, he was not represented by a lawyer who was licensed to practice in the State of Montana or in the United States District Court for the District of Montana.

At trial, one of the victims testified that he thought Maggi had held himself out to be an Indian person because Maggi talked about going to sweats. However, other than having heard Maggi talking about going to sweats, this victim was not sure if Maggi held himself out to be an Indian person. The other victim gave her opinion that Maggi [h]eld himself out as an Indian person or as a Native American because he went to pow-wows, sweats, and smudgings, but she admitted that she had never seen Maggi participate in a sweat, never seen him personally smudging, and had never seen him at a pow-wow.

The government did not produce any evidence that Maggi ever resided on the Blackfeet Indian Reservation. Nor did the government produce any evidence that he either attended school on the reservation or was employed on the reservation. Furthermore, there was no evidence that Maggi ever voted in a tribal election or that he had a tribal identification card.

Maggi appealed, and the Ninth Circuit ruled that this evidence did not prove beyond a reasonable doubt that Maggi was an Indian person. The Ninth Circuit found that the facts in Maggi were remarkably close to Cruz, in which the court held that the government did not sustain its burden at trial. Holding that the district court erred in denying Maggi's motion to acquit, the court found that the government's sparse collection of evidence did not provide sufficient proof of any of the Bruce factors and, in particular, failed to demonstrate tribal or government recognition of Maggi as an Indian.

C. Gentry LaBuff

Gentry LaBuff, who was charged with a 1153(a) robbery committed on the Blackfeet Indian Reservation, was not an enrolled member of a federally recognized tribe. His mother was white. From his father, an enrolled member of the Blackfeet Tribe, LaBuff was 7/32 Indian with 5/32 Blackfeet blood and 1/16 Cree blood. Through his father, LaBuff had been designated as a descendant of a member of the Blackfeet Tribe, thus making him eligible to receive medical care at the Blackfeet Community Hospital, to receive educational grants, and to fish and hunt on the reservation. Having lived most of his life on the reservation, he had received free health care services there since 1979, but had never received educational grants or hunted or fished on the reservation. LaBuff, born and raised on the reservation, attended a reservation public school that was open to non-Indians. Although he had descendant status, he was not eligible to vote in tribal elections and he had not participated in tribal activities or Indian cultural events. LaBuff had been prosecuted in the Blackfeet Tribal Court but had never challenged court jurisdiction on the basis that he was not an enrolled member of an Indian tribe.

LaBuff always considered himself to be a white person, and he never held himself out to be an Indian person. As to his physical appearance, he was described as a tall, white-looking guy . . . . a taller, light-skinned gentleman. Members of the Blackfeet Tribe had never treated LaBuff as an Indian person. When he attended school, he was taunted and teased for being a white person. They called LaBuff a little white boy. He even had to fight to protect himself. Although he lived, grew up, and went to school on the Blackfeet Indian Reservation, LaBuff was not socially recognized as an Indian, and he did not participate in Indian social life. LaBuff never wore traditional Indian clothing nor had he participated in Blackfeet social or ceremonial activities such as pow-wows or sweats. He also never participated in smudging or other Indian ceremonies or religious activities.

Nonetheless, the Ninth Circuit rejected LaBuff's argument that the government did not prove beyond a reasonable doubt that LaBuff was an Indian person under 1153. The court began its analysis by again recognizing that determining who is an Indian under 1153 is not easy, as the statute does not define the term Indian. The Ninth Circuit found, as LaBuff conceded, that the government satisfied the first prong of the Bruce test. Because LaBuff was 5/32 Blackfeet Indian, he possesse [d] a sufficient degree of Indian blood. The panel then applied the second Bruce prong, the four Indian recognition factors, in declining order of importance.

As to the first Bruce Indian-recognition factor--tribal enrollment--the Ninth Circuit acknowledged that LaBuff was not a member of a federally recognized tribe. However, the court found that tribal enrollment is not required to establish recognition as an Indian. Because LaBuff resided on the reservation and maintained relations with the tribe, the panel concluded that the lack of evidence of tribal membership is not dispositive of his Indian status.

As to the second most important Bruce factor--government recognition through receipt of assistance reserved only to Indians--the Ninth Circuit found that LaBuff was eligible for, and did receive, healthcare services at the reservation hospital which is operated by the federal government and which limits services to tribal members and other non-member Indians. The court concluded that the government presented sufficient evidence to establish the second Indian recognition factor because LaBuff repeatedly accessed healthcare services reserved only to Indians.

Based on this same evidence, the court also concluded that the government proved the third Bruce factor--enjoyment of the benefits of tribal affiliation--as LaBuff frequently received healthcare services on the basis of his status as a descendant of an enrolled member. The panel concluded that the second and third Bruce factors can be satisfied by demonstrating receipt of a substantial benefit reserved only to Indians, such as the free medical care provided to LaBuff.

Turning to the fourth Bruce factor--social recognition as an Indian through residence on a reservation and participation in Indian social life--the Ninth Circuit found that, although LaBuff lived, grew up and attended school on the Blackfeet Reservation, there was no evidence that he participated in tribal activities or voted in tribal elections. This evidentiary void had apparently little significance as the court concluded that the lack of voting and participation in tribal activities does not preclude a reasonable inference of social recognition, especially where the defendant has lived his entire life on the reservation.

Noting that the four Bruce Indian-recognition factors are not exclusive, the Ninth Circuit found significant that on multiple occasions, LaBuff was arrested, prosecuted, and convicted under the jurisdiction of the tribal courts. Citing Bruce, the court concluded that tribal recognition can be demonstrated by the assumption and exercise of tribal jurisdiction over criminal charges. Ignoring the Cruz court's determination that a tribal conviction does not necessarily mean the tribal court had jurisdiction over [the defendant] and that a federal court cannot determine tribal court jurisdiction in the absence of any true judicial consideration, the panel apparently considered it important that LaBuff did not challenge the authority of tribal officers to arrest him or the exercise of tribal criminal jurisdiction by the Blackfeet Tribal Court. In sum, the Ninth Circuit held that, when viewed in the light most favorable to the government, the evidence was sufficient for any rational factfinder to have found, beyond a reasonable doubt, that LaBuff is an Indian for purposes of 1153.

D. Ronnie Smith

Arising on the Fort Peck Indian Reservation, the case of Ronnie Lynn Smith endured a complex procedural history before its final result on his Indian status. The government charged Smith with assault with a dangerous weapon, under 18 U.S.C. 1153 and 113(a)(3), and a jury convicted him.

Smith appealed his conviction and his sentence. The Ninth Circuit affirmed the conviction and subsequently remanded the case for further proceedings regarding the sentence, pursuant to United States v. Ameline. The district court confirmed the sentence and, in the next appeal, the Ninth Circuit again remanded for compliance with Ameline. The district court again confirmed the sentence, and Smith again appealed. Defense counsel filed an Anders brief, and the Ninth Circuit affirmed the district court's judgment. Smith timely filed a motion to vacate, set aside or correct his sentence, pursuant to 28 U.S.C. 2255. The post-conviction proceedings centered on the Indian status issue. At the trial, the issue first arose during jury selection.

Relevant here, during jury selection, the judge discussed the involvement of Native Americans in the trial. Well, I want to follow up on this topic that I addressed initially with you concerning ethnic background of persons and other topics of that sort. The defendant in this case is in fact a Native American. A very substantial number of the persons whose [sic] appear and give testimony at this trial may be Native Americans as well. The court asked the panel members if any had such strong views on the subject of ethnic background or tribal affiliation that they could not serve as fair and impartial jurors. No panelist responded affirmatively to this inquiry.

The prosecutor acknowledged in the government's opening statement that the government had to prove that Smith was an Indian person. During the government's case-in-chief, an investigator with the Fort Peck Tribe, who had known Smith most of his life, testified regarding Smith's Indian status and laid foundation for admitting three exhibits. The first exhibit was an application by Smith for enrollment in the Fort Peck Tribe, as an associate member. The second was a certificate of Indian blood, which stated that Smith has a blood degree of 25/128 Assiniboine and Sioux blood and was an associate member of the Tribe. The investigator testified that an associate member had the right to use the Indian Health Service facility but did not have the right to vote, to share in per-capita payments, or to own tribal property. The investigator also testified regarding a tribal resolution, in which a tribal enrollment committee had voted to allow Smith to give up his tribal associate member rights. The reason behind this relinquishment was not in evidence. The investigator finally testified that Smith had lived on the reservation. In response to the prosecutor's question of whether Smith held himself out as Indian, the investigator stated [a]s far as I've known, yes.

During the trial, Smith did not challenge the sufficiency of the government's evidence as to his Indian status. During closing argument, the prosecutor asserted that the three exhibits introduced through the investigator satisfied the element regarding Smith's Indian status. The prosecutor argued: The defendant has Indian blood and was a member of the tribe at one point, and is eligible for enrollment in the tribe. That makes him an Indian person. Defense counsel did not challenge the government's proof as to Smith's Indian status, however, during closing argument.

Furthermore, during settlement of jury instructions, the defense did not offer any instruction on the definition of Indian, nor did Smith object to the court's proposed instructions.

Before the court instructed the jury, a juror submitted a note inquiring into the significance of Smith's Indian status:

[T]he prosecutor presented documentation regarding Ronnie Smith's status and tribal affiliation. Specifically, that he is no longer a member of the Fort Peck Reservation. My question is: What was the relevance of this information? It was the night of tribal elections, yet Ronnie Smith wasn't a voting member of the tribe. A point for clarification only, please.

The court discussed the note and the propriety of a response with counsel, and, with consent, the court told the jury that it would not be appropriate to comment further.

As part of its final instructions, the court informed the jury that the government had to prove, beyond a reasonable doubt, that Smith was an Indian person. Yet, the term Indian was not defined in the instructions, and neither party requested such an instruction. The jury nevertheless convicted Smith.

Following his direct appeals and resentencings, Smith claimed ineffective assistance of counsel in his 2255 motion for relief. He alleged, inter alia, that trial counsel had rendered ineffective assistance by failing: to request a jury instruction specifying the government's burden of proof with respect to the Indian status element, particularly in light of the juror's note; to object to the prosecutor's misstatement of the law that Smith's membership with the Tribe made him an Indian; and to argue at trial and on appeal that the government had failed to prove Smith's Indian status. Smith also alleged that the trial court had erred and abused its discretion when it informed the venire that Smith was a Native American, thus relieving the government of the burden of proving this element of the offense. Finally, in an addendum to his petition, Smith claimed the court lacked subject-matter jurisdiction under 1153 because he is not an Indian. At trial, the government had presented evidence that Smith was eligible for enrollment as an associate member in the tribe. Post-conviction, as an addendum to his 2255 petition, Smith submitted a letter from someone affiliated with the Enrollment Office of the Fort Peck Tribes, who stated that Mr. Smith does not meet the required blood quantum of 1/8 for Associate Membership nor 1/4 Full Enrollment in the Tribe.

The district court rejected each of the ineffective assistance of counsel claims, finding that Smith failed to meet the prejudice prong under the Strickland test. Since the court found the evidence of Smith's Indian status was sufficient, it also rejected his claim that the court lacked jurisdiction under 1153. The Ninth Circuit reviewed whether the jurisdictional element of Indian status was met under the Major Crimes Act. Smith presented multiple arguments on this issue.

Smith was not an enrolled member of the Tribe. He once was an associate member, which meant that he was eligible to receive limited benefits from the Tribe, including access to the Indian Health Service. Smith relinquished his associate membership in 1996. The government presented no evidence that Smith ever actually used Indian Health Services. In terms of other potential benefits, Smith could not vote in tribal elections, share in tribal per capita distributions, or own tribal property.

A panel of the Ninth Circuit ruled the government had presented sufficient evidence to establish Smith's Indian status. The court first ruled the government sufficiently established Smith's Indian blood to satisfy Bruce's first prong because the government presented evidence that Smith has 25/128 (19.5 percent) Assiniboine and Sioux blood, well in excess of the 1/8 we approved in Bruce and Maggi. The court acknowledge[d] that Smith's 2255 motion attached a letter from the Fort Peck Tribes Enrollment Office stating that Smith does not meet the required blood quantum of 1/8 for Associate Membership [in the Fort Peck tribes], nor 1/4 Full Enrollment. The court responded, however, that the letter had not been submitted at trial, and even if it had been, a rational trier of fact could have chosen to credit the more specific, higher figure established by the government's evidence.

The court then reviewed the evidence satisfying Bruce's second factor. Referencing Smith's prior Associate Membership, the court noted that Smith at one time enjoyed formal tribal enrollment, the most important indicator of tribal recognition of a defendant's Indian status. Contrasting previous opinions, the Ninth Circuit explained, [a]lthough Cruz and Maggi held that descendant status' in the Blackfeet tribe, available to the children of formally enrolled Blackfeet members, was insufficient to show tribal enrollment, Smith's membership in the Sioux and Assiniboine tribes was more formal than Cruz and Maggi's descendant status. The court detailed, Smith was actually enrolled as a tribe member by virtue of his own quantum of Indian blood. He was not a mere descendant eligible for tribal affiliation by virtue of a parent's enrollment alone. This analysis exemplifies the Ninth Circuit's attraction to objective facts in determining Indian status.

The court analyzed Smith's relinquishment of his tribal enrollment in 1996. This decision does not definitively show . . . that Smith or the tribe ceased to consider Smith an Indian person. The court noted that the tribal investigator testified he had known Smith for most of his life, that Smith had lived on the reservation that entire time and that, as far as [the investigator] knew, Smith held himself out to be an Indian person. In this regard, the court appeared to minimize Smith's self-identification in seizing upon conflicting evidence offered by a non-Indian witness.

The court summarized, [a] rational jury could have concluded that because Smith was once formally enrolled in the tribe and continued to hold himself out as an Indian even after his enrollment ended, both Smith and the tribe continued to view Smith as an Indian despite his unexplained decision to relinquish his formal enrolled status. The panel concluded that there was sufficient proof for the factfinder to determine that Smith was an Indian person.

Smith stands as a warning to defense counsel. After all, Smith's procedural context of post-conviction review, with the attendant heightened standards to reverse, was undoubtedly important and likely dispositive. Had the Indian issue been pressed at trial and incorporated into the jury instructions, the jury may have reached a different verdict, or the Ninth Circuit may have viewed the jury verdict differently on appeal.

E. Juvenile Male

Juvenile Male was charged with a 1153 crime. The Ninth Circuit limited its factual discussion to the following: The juvenile is at least one quarter Indian by blood, and is an enrolled member of a federally recognized tribe. Additionally, the court noted that the juvenile resided on the reservation and used his membership to receive tribal member benefits. The court continued, stating that the juvenile claims not to have obtained social recognition as Indian, and, despite living on the reservation, does not identify as Indian himself. According to the Ninth Circuit, this adds up to proof beyond a reasonable doubt that the juvenile is an Indian person.

The court determined that the juvenile had conceded that the government proved the first three Bruce Indian-recognition factors: he is enrolled in a tribe, received assistance and benefits reserved only to Indians, and enjoys the benefits of tribal affiliation. Even if the government had not proven the fourth Bruce factor, a trier of fact may conclude [that the juvenile] is Indian. The Ninth Circuit cited LaBuff for the proposition that the government does not have to prove all four Bruce Indian recognition factors to establish the Indian status element.

Because the juvenile had sufficient Indian blood and satisfied the first three Bruce Indian-recognition factors, including the most important factor--tribal enrollment, the Ninth Circuit held that a reasonable trier of fact could find the juvenile to be an Indian beyond a reasonable doubt. The court reasoned that, although they may prove to be relevant in a closer case, the juvenile's claims that he has never held himself out as an Indian person and that he has not been socially recognized or accepted as an Indian do not outweigh the proof of the first three Bruce Indian-recognition factors in this case.

V. Practice Pointers and State of the Law

If the government invokes 1152 or 1153 in the indictment, the litigants must closely analyze the Indian status of the defendant. Litigants should be mindful that the appellate courts have analyzed this issue on a case-by-case basis.

First, litigants should focus on the two parts of the Supreme Court's Rogers test upon which all the circuit tests are based. An Indian person is an individual who has Indian blood and who is regarded as an Indian. The caselaw demonstrates that if the defendant has some Indian blood and is recognized as an Indian by either a tribe or the federal government, he or she will be considered to be an Indian person for jurisdictional purposes.

Does the defendant have any Indian blood? If no, he or she cannot be an Indian person. If yes, what is the degree of Indian blood? In most cases, individuals have not been found to be an Indian person unless he or she has at least 1/8 Indian blood. However, the Eighth Circuit determined that a defendant with 3/32 Indian blood was an Indian person. Although the Ninth Circuit requires a sufficient quantity of Indian blood, the minimum percentage to satisfy the sufficiency test has not been specified.

If the defendant has Indian blood, has he or she been recognized as an Indian by a tribe or by the federal government? Enrollment in a tribe is the common evidentiary means of establishing Indian status.

In the Eighth Circuit, tribal enrollment is dispositive. In the Ninth Circuit, which also requires that the tribe be recognized by the federal government, tribal enrollment is not dispositive. But from a practical standpoint, tribal enrollment likely satisfies the second part of the Rogers test and will typically be sufficient to prove Indian status.

If the defendant has Indian blood and is not a member of a tribe, counsel must carefully consider the other Indian recognition factors. These factors include the government's formal and informal recognition of the defendant's Indian status through the granting of assistance reserved only to Indians, the defendant's enjoyment of the benefits of tribal affiliation, the tribe's formal or informal recognition of the defendant's Indian status by subjecting him to tribal court jurisdiction, the tribe's social recognition of the defendant's Indian status through his residence on the reservation and his participation in Indian social life, and whether the defendant holds himself out as an Indian. Any other recognition factor should also be considered. Investigation is critical and visiting the reservation is necessary.

Counsel should get a detailed history of the defendant's life. The following information must be obtained: the defendant's current or past relationships with formal Indian entities (e.g., tribal enrollment, Indian Health Services, or tribal courts); the defendant's residential history; the defendant's family history and its involvement with Indians and tribes; the defendant's attendance at Indian social, cultural, or religious events; the defendant's participation in any such events; the defendant's self identity as an Indian or non-Indian person; and other individuals' perception--both Indians and non-Indians--of the defendant's identity. Counsel must gather these facts and any other Indian recognition evidence--or lack thereof--to analyze whether there may be a reasonable doubt as to the defendant's Indian status.

A defendant's Indian status is an essential element of a 1153 offense which the government must allege in the indictment and prove beyond a reasonable doubt. However, as a jurisdictional element, it appears that the appellate courts do not search for reasonable doubt. For example, in both LaBuff and Juvenile Male, the Ninth Circuit disregarded the lack of proof of the fourth Bruce factor, social recognition as an Indian through residence on a reservation and participation in Indian social life. The caselaw demonstrates that the courts are not likely to find reasonable doubt unless there is a significant lack of evidence of at least three, and perhaps all four, of the Indian recognition factors. For defense counsel, the seeming reluctance of the appellate courts to identify reasonable doubt underscores the importance of persuading the fact-finder at trial. If trial is by jury, counsel should submit an instruction to guide the jury in the determination of Indian status. The additional Indian person element should be included in the instruction as an element of the offense.

Counsel must also consider whether to waive a jury trial. If the evidence of the alleged crime is strong, or if the alleged crime is violent, a jury may be reluctant to acquit even if the Indian status evidence is weak. If the evidence of the alleged crime is weak, counsel may lose credibility with the jury by emphasizing the Indian status issue. In the latter situation, counsel may argue the issue to the court in a Rule 29 motion for judgment of acquittal and then simply tell the jury in passing that the government has failed to prove the Indian status element. The record must be preserved.

In sum, if the defendant is enrolled in a federally recognized tribe, the likelihood of success in challenging the Indian status element is slim unless the defendant has left the reservation and does not receive any tribal or government benefits reserved only for Indians. If the defendant is not enrolled in a federally recognized tribe, LaBuff suggests that the courts are likely to focus only on the two Rogers issues writ large, preferring not to delve into the intricacies of the four-part test; instead, it appears the courts will look only to whether the defendant has Indian blood and whether the defendant has been recognized as an Indian by the government or by a tribe, particularly as to any receipt of money or medical and hospital services. At bottom, it is a fact-based inquiry that plays out on a case-by-case basis.

For the courts, Smith reflects that, even where the parties do not press the Indian issue, judges and juries must still adjudicate it. Juries resolve the issue on an ad hoc one-time basis. The courts do not have that luxury, and instead must deal with it systematically. The Supreme Court has not done so since 1846. The stark and racial language of Rogers reflects a bygone era. The Indian-country district and appellate courts of today adjudicate in a different culture, in which the law does not consider Indian to be a racial, but instead a political determination. Given that shifted perspective, should the law shift as well?

We see it as a matter of conflicting policy choices. If ease of application is the priority, tribal membership alone could define Indian status. Some may argue that such a law enhances tribal sovereignty by respecting a tribe's determination of who is a member of their tribe. Yet many tribal members, and perhaps even the tribe as a political entity, would readily admit that such a construction is a legal fallacy because it would limit Indian status to only those enrolled in the tribe and would exclude even blood relatives of tribal members.

If the law should reflect reality, and all of its complexities, then self-identity and community perspective should become paramount, or at least more important than the current law values. Of course, reality is complex and often times, if not inherently, subjective. The law currently favors objective facts (i.e., tribal enrollment or federal government recognition) over the reality of daily existence (i.e., social recognition as an Indian). Yet, the law permits the jury to consider evidence of self-identity and social expression. That vacillation embraces our history but perplexes the courts and troubles adjudications.

One legal conclusion is certain. Ultimately, the Supreme Court must engage this issue. In the meantime, federal prosecutions in Indian country continue, and this aspect of the American Experience marches on.

VI. Conclusion

To many Americans, Indians are confined to history, at most a marginalized relic of the past, isolated on rural reservations. The reality is, Indian country survives. Indian status is central to establishing federal jurisdiction in Indian country cases under both the Major Crimes Act and the General Crimes Act. It cannot be ignored. Perhaps reflecting this tortured aspect of our history, the issue is complex, controversial, and conflicted. For the practitioner, its fact intensity demands a close working relationship with the client and record development. For the courts, this remains a perplexing issue and at least one circuit conflict must be resolved.



. Donovan has practiced law in Great Falls, Montana since 1976, including service as an Assistant Federal Defender in the District of Montana from 1993 to 2000. He represented Shane Maggi, Gentry LaBuff, and the Juvenile Male at the Ninth Circuit Court of Appeals. He was named the 2009 Criminal Defense Lawyer of the Year by The Montana Association of Criminal Defense Lawyers. B.A., 1971, University of California, Berkeley; J.D., 1976 University of California, Hastings College of Law.

. Rhodes has served as an Assistant Federal Defender for the District of Montana since 1998. In 2002, he served in Washington D.C. as Special Counsel to the United States Sentencing Commission. Rhodes represented Violet Bruce at the Ninth Circuit. B.A., 1987, DePauw University; J.D., 1990, Harvard Law School.


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