10th Circuit questions who bears burden of proving Native status in tribal land criminal cases

In recent years, the 10th Circuit has overturned child sex abuse convictions for three men after finding the government didn’t prove they weren’t “Indian” — an antique carveout for crimes committed on tribal land.DENVER (CN) — If Dennis Herbert descended from Native Americans, he didn’t testify to it in court.He never told law enforcement or his stepdaughter, and an officer for the Choctaw Nation Tribal Police testified Herbert wasn’t a known member of the tribe on whose Oklahoma land he was convicted of sexually abusing a 6-year-old boy.And yet relying on the 2001 en banc decision in U.S. v Prentiss, a 10th Circuit panel found last year federal prosecutors failed to prove beyond a reasonable doubt Herbert doesn’t have any “Indian blood” — thus throwing out a jury’s 2024 verdict finding him guilty of aggravated sexual abuse in Indian Country, along with a 30-year prison sentence.“The court has the opportunity today to correct a mistake made 20 years ago, one that deprives the victims of Dennis Herbert and Joel Ruiz of justice,” U.S. Attorney Paige Messec said Monday.Herbert’s and Ruiz’s 2024 convictions are two cases within three years to be overturned using the disqualifying rule.Messec urged the en banc 10th Circuit on Monday to examine the prosecutorial exemption some scholars argue has long been obsolete.The exemption comes from a centuries-old rule disqualifying the federal government from prosecuting crimes between Native Americans on reservations.Passed in 1817, the General Crimes Act extended federal law to tribal reservations, except for crimes between Native Americans, for which prosecution remained with the tribe. In 1885, however, Congress passed the Major Crimes Act, removing the exception for certain crimes.“When subject matter jurisdiction is asserted under 18 U.S.C. §1153, the government bares the affirmative burden of proving he is an Indian,” Herbert’s federal public defender Jared Guemmer argued.Barack-Obama appointed U.S. Circuit Judge Robert Bacharach said a defendant’s Fifth Amendment rights would protect them from declaring their status as a Native American, if doing so could get them charged under another portion of the law.“If he stands up and says he’s Indian, the government can dismiss the 18 U.S.C. §1152 and next day charge him under 18 U.S.C. §1153, he just confessed to another element,” Bacharach said.Still Messec argued a defendant’s tribal status is an affirmative defense that a defendant must make — not prosecutors’ burden to carry, particularly in light of the challenges of proving someone’s genealogy.“Where is the law that says we should be concerned about how hard it is for the government to prove non-Indian status?” U.S. Circuit Judge Veronica Rossman, a Joe Biden-appointee, asked.Messec suggested the reality of finding information should at least be part of the calculation.“We haven’t said there is a hard and fast rule of statutory interpretation that you must assign the burden to the party that can most easily carry it, but that is something the Supreme Court has looked at as a pragmatic element,” Messec said.Ruiz’s attorney, federal public defender Violet Edelman, said not affirming his appellate ruling would overstep onto tribal sovereignty.Ruiz was convicted in 2024 of aggravated sexual abuse in his trailer at the Jicarilla Apache Nation Reservation in central New Mexico. Although Ruiz’s confession had been suppressed during his trial, prosecutors say he told law enforcement he wasn’t affiliated with the Jicarilla Apache tribe.A 10th Circuit panel later found the government hadn’t proved beyond a reasonable doubt the Mexico-born man wasn’t Native American, vacating his conviction and 30-year sentence.“If I’m understanding, your argument goes to Congress defining the crime,” U.S. Circuit Judge Scott Matheson, a Barack Obama appointee said. “How can this be a jurisdictional element?”Edelman argued that Congress left the question open, stripping courts of the ability to answer it.“I think the fact that we’re here and there’s all this confusion, we can see it’s not clear, and when it’s not clear, we look to Indian sovereignty,” Edelman argued.In response to an amicus brief from UC Berkley School of Law Professor Kevin Washburn — who said a defendant’s tribal status is irrelevant in a felony sex offense case against a Native American child in Indian Country — Edelman cautioned the court against collapsing two different laws to suggest the federal government can prosecute any crime on tribal land regardless of the parties’ statuses.U.S. Circuit Judges Harris Hartz and Timothy Tymkovich, both George W. Bush appointees, signed onto the Ruiz opinion along with Barack Obama-appointed U.S. Circuit Judge Carolyn McHugh.Hartz, Bacharach and Matheson decided Herbert’s appeal in his favor.Those original-panel judges were joined by Chief U.S. Circuit Judge Jerome Holmes, a Bush appointee; U.S. Circuit Judges Gregory Phillips and Nancy Moritz, both Barack Obama appointees; U.S. Circuit Judges Allison Eid and Joel Carson, Donald Trump appointees; and Joe Biden-appointed U.S. Circuit Judge Richard Federico.The court did not indicate when or how it would decide the case.Categories / UncategorizedSubscribe 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