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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.

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Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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