this audio file for case ten and one zero one three one usa damien's page is incomplete it is missing the first six minutes of the opponent's argument this file will be updated with complete audio when it is recovered if you have questions about this and we know the answer as a matter of law is yes because all we have to do is look at the bureau of indian affairs listing recognize tries and both those tribes are listed right here are the  no basis in the record for the jury  lived off the reservation he had there were no demonstrative plea political or social ties to any reservation there was nothing that suggested he received any benefits reserved which point you were through or question  within certain parameters and we have the rogers test in eight hundred forty six that requires some indian blood and then we  america prior to the arrival of europeans it does not mean native americans in the sense that we may have south americans north americans and he was right which actually  many many people have so if you make it so complicated and no one can decide by the you try someone under this statute or when you try to come under you know and otherwise in court because i mean clearly despite your shawl and if you make it so complicated and all and if you change these tasks to a certain point we'll never know who's who and i mean that essentially you get off of a crime because we can't you know we can't determine your blood mine  answer just to directly to the course question as to whether or not the court should reconsider the maggy decision and whether or not there is a requirement for federal recognition with respect to the first prong requirement our answer is a few fold that the court should not overrule that test course to be a federally recognized tribes one of the key requirements talks about being a descendant of a formally sovereign people and we know for a fact that there are lots of indians a lot of blood indian people  key requirements a federal recognition as i look at the book of ruth and i go and it seems to me that it's to protest is designed to make sure that someone is both an indian by blood and tied to a tribe either by enrollment or by some fairly close affiliation the two prongs necessary according to the reasoning of the cases so that a white person has become a member of a tribe according to the tribe rules not bet purpose i got that but why isn't it appropriate to modify the test to allow someone to be characterized as an indian where as here it is unquestioned that he is a half indian blood best view as one is about the individuals political relationship both current political affiliation as well as historic ancestral political affiliation if you want you also want to make at our i have my understanding of your briefcase that you also i want to trial does require in some circumstances or does require consent of the individual now to be sure in rome and in a tribe i think will often be very strong evidence of that kind of consent but as we explained that the tribal membership is a  two way street is recognition by the tribe of somebody who is either a member or eligible for membership and then it's except inside the individual of being a member in that tribe and being an indian requires those elements again  gotcha i'm not guilty because you can't prove that i want to be a member of that tribe today i think that you could then double jeopardy attaches well you know i think you can envision circumstances where somebody is unrolled member of the tribe but for example they were rolled by their  parents immediately after birth and never had any affiliation with the tribe from then on might not know that they've been enrolled in a circumstance like that you could conclude that even though their parents and rolled them at two weeks of age they never had the delusional aspect to be an indian i think that is the sort of mean we don't want we want people to have to process we want them if it is you know might have a crime we want it to be you know we wanted to be clear but if you make it you know that it can change on any given day then how's anyone ever to know whether you  about a racial fundamental law here in fact they specifically say in dealing with indians with federal government is feeling pressure on our particular race but with members of certain social i think you were speaking a little bit quickly and i had a hard time understanding your last answer to the question about i think it was a question for you asked by judge price about not here and whether it didn't require a connection to a would have to prove to a jury that the bank was federally insured right correct that's a question of fact that you have to prove to the jury as i understand it your position that whether a tribes federally recognized or not is a question of law right that is correct why why the distinction because whether a tribe is federally recognized is basically premised on statutory law in treaties it's not it's not and it's not something for example chase bank isn't specifically in this case the government can introduce any evidence about the town on crack because maggie had been decided then and in as a practical matter in this case the government was premised seen the proof of indian status on the travelling romit which was stipulated to the the question of whether he was indian i was not with never argue in the case we had a travelling romans that was stipulated to we had testimony that his brother who had the same parents w native american from pima in that it comes out in the transcript is tito i would suggest that she be a him t o for telling autumn but that that was sufficient  legal definition is whether this particular individual has a sufficient connection to the physician to prove who to troops who are for joy to find that he is he is in fact an indian yes the jury has to find that he's  sometimes happens in a court where something is not really an issue which i think everybody that reads the transcript would agree that this wasn't an issue in this case that that's it the instruction was sufficient considering  his father was a lot of insufficient there's no proof as anybody other than his father so we're really talking about the father right so what is it in this record that proves that his father was a member of a federally record nice try not that he was that point in this case is under the pass in this case and let's assume that mega had been in existence in let's assume the jury had been properly instructed they would have been instructed that they had to find a blood life from a federally recognized tribes that they  only logical and which may be fairly likely but then i come back to the most dire and federally insured bank cases you know we're very strict about proof of federal insurance so you get a federal makram we charge and the government has to prove that the bank was insured at the time of the robbery and every now and again i get one of these cases they surprised me when i saw the first one where the government introduces a certificate of insurance doesn't cover the precise period during which the robbery took place and we toss those things even though it strikes me is preposterous me the bank is a business it was federally insured a week before the robbery it might have been friendly richer in the week after but we require that the certificate showing very precisely that was we don't know how the inference in other words so i want to ask you a question now it was the government's burden to prove that he was a member of a federally recognized tribes right that was your burden right now it just seems to me that the government accepted this stipulation whatever it says but never in that issue  standard somebody else like that to testify that was referring to that's correct right the question to make sure that i'm understanding that i get that we're going to construe all the evidence in the light most favorable to the prosecution i'm willing to give you all that of course but i'm just trying to narrow isn't that the gap you've got and the question is whether or not that's going to be a reasonable improper speculation by the jury you know the hole in your case isn't that well i would i would say that on the state of the record in this case where there was no evidence presented to the jury that there is any other automation arizona of the nation of arizona i got that but the jury's going to be required to find that the father was a mineral member of that tribe so that's a factual question and intel they know that that tried exists how can they make any factual have a burden at some point to if they and is this do you have any indication whether i've never heard that this defendant is factually innocent you know there's no indication i mean everything be enough for you recognized there's equal basis or no basis i agree with and he would have been acquitted and we wouldn't be here if they had made that inference right there they were never given the opportunity to they just cited it basically on a naked racial specifically how would they prove that they would have simply have to refer to a record the best proof is the be on a list and then a legit at trial but it is an element rather it is not