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.