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.