10th Circuit finds raising Native American status as criminal defense falls on accused

The 10th Circuit previously overturned child sex abuse convictions for three men after finding the government didn’t prove they weren’t Native American — an antique carveout for crimes committed on tribal land.DENVER (CN) — A unanimous en banc 10th Circuit determined Wednesday that a criminal defendant may establish that they have Native American ancestry as a defense against crimes committed on tribal land, but a defendant’s tribal status is not the government’s burden to prove.“Contrary to the defendants’ arguments, diversity of Indian status is not a jurisdictional element and is not necessary to the federal courts’ subject-matter jurisdiction over these offenses,” U.S. Circuit Judge Scott Matheson wrote in a 51-page opinion reversing two panel decisions and a prior en banc panel.In recent years, the 10th Circuit overturned child sex abuse convictions for three men after finding the government didn’t prove they were Native American as required by an antique carveout for crimes committed on tribal land, backed by the 2001 en banc review of U.S. v Prentiss.One of those cases involved Dennis Herbert. In 2024, a jury found Herbert guilty of aggravated sexual abuse in Indian Country after he sexually abused a 6-year-old boy on Choctaw Nation Tribal in Oklahoma. On appeal, Herbert argued prosecutors failed to prove he wasn’t Native American — even though four witnesses testified to his lack of tribal status — prompting a 10th Circuit panel to throw out the conviction and resulting 30-year sentence.Another 10th Circuit panel likewise threw out a 30-year sentence against Joel Ruiz due to uncertainty about his tribal status after a jury convicted him of sexually abusing a child in his trailer at the Jicarilla Apache Nation Reservation in central New Mexico.The U.S. Department of Justice petitioned for en banc review in both cases, urging the court to close the loophole that let convicted sex offenders walk free.The law initially gave federal prosecutors jurisdiction to bring charges for crimes committed on tribal land with the carve out for crimes committed by one Native American against another, and crimes that had already been punished by tribal law.But Matheson notes, “nowhere does the statute state that a defendant’s Indian status is an element.”“The general rule that exceptions to statutory liability are affirmative defenses weighs in favor of holding that a defendant’s Indian status is an affirmative defense in a section 1152 prosecution with an Indian victim,” the Barack Obama appointee added.The en banc decision remanded the question of whether Herbert and Ruiz should be given new trials to the lower panels that overturned each conviction.“Because Mr. Hebert and Mr. Ruiz were both convicted under the incorrect allocation of proof and without notice of their obligation to put forth evidence of their Indian status as an affirmative defense, and because the panels reviewed an evidentiary record that was developed under the wrong standard for burden of proof on Indian status, further proceedings are necessary,” Matheson explained.Matheson was joined in the opinion by Chief U.S. Circuit Judge Jerome Holmes and U.S. Circuit Judge Timothy Tymkovich, both George W. Bush appointees; U.S. Circuit Judges Gregory Phillips, Carolyn McHugh and Nancy Moritz, Obama appointees; U.S. Circuit Judges Allison Eid and Joel Carson, Donald Trump appointees; and Joe Biden-appointed U.S. Circuit Judges Veronica Rossman and Richard Federico.U.S. Circuit Judge Harris Hartz penned a three-page concurring opinion further teasing out the asymmetrical burden of proof placed on both parties.“If the defendant has the burden of establishing that the accused and the victim are both Indians, then it would follow that a defendant who is uncontroversially Indian would have the burden (of production and persuasion) of showing that the victim is Indian. It is not obvious to me that the defendant would have better information on that issue than would the government,” Hartz wrote.Hartz also emphasized that Ruiz and Herbert’s convictions should stand if they don’t have evidence of tribal status to put forth before a new jury.“It would be peculiar for us to reject all other arguments by defendants for reversal of their convictions but nevertheless send their cases back for retrial despite their having no evidence that they are (or were) Indians,” Hartz wrote.Obama-appointed U.S. Circuit Judge Robert Bacharach signed onto Hartz’ concurrence.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads