good morning honors and may please the court look mulligan for the i'd like to reserve two minutes for rebuttal at this time and i'll try to keep my eye on the clock to do that ok to convict my client at trial the government was required required to prove beyond a reasonable doubt that he was not affiliated with the fort mojave indian tribe stipulated evidence established that my client received health services from the fort mojave indian tribe forty five times in the six years preceding his arrest in this matter he received those benefits by virtue of his status as a descendant of an enrolled member of the tribe the tribe provides these services to descendants of enroll members in united states versus leboeuf this court said that because the defendant had frequently received health services on the basis of his status as a descendant of an enrolled tribal member he enjoyed the benefits of his tribal affiliation of affiliation with the tribe again maybe you could help me with something that's confusing about our test so are our newest formulation of the test is in zip ada and we adopt more or less the bruce test and we say here are the four say if you're very strong on three then the government's proven it beyond a reasonable doubt it's very confusing to figure out how to apply this test of a declining order of importance the tribe requires one quarter so really we're looking at tribal and government or tribal recognition now there's a pedestal uses that language prior to announcing the new iteration of the test the the the descending the four factors in descending order of importance and rolled and benefits received by virtue of enrollment or by virtue of eligibility for enrollment tribal  e benefits received by virtue of tribal affiliation and social recognition the court's prefaces that with this is what we look to do to determine whether or not there's tribal or government recognition you just i mean i don't want to interrupt the thread of your answer to judge acute about these factual findings are you disputing the factual findings to a large extent no there isn't much that there were most of the facts were frankly submitted by stipulation so the facts are largely uncontested there's some around the margins that are but i don't think they're particularly important for purposes of our discussion here today those of who we think you made a strong showing say on prong three the question would be well but could a reasonable juror determine that your client was not an indian under this test because there was it stipulated that the first two very most important so we know that enrollment is not the end all and be all we know that a person can be found to be an indian without being roman and there's a reasonable juror required to fight that without it i mean that's really where we're sitting now in roman or affiliation so with regard to the four factor test those factors it to did to determine recognition i would submit that the first two factors are irrelevant to determine affiliation if the person is affiliated were probably not worth the person has a role we're probably not going to go on and look to whether they're affiliated with a tribe or not the common method of proving indian status is blood quantum and enroll them and the paper says blood quantum enrollment or affiliation now so let's check out i was also or are eligible to become members so it doesn't have to be a member as long as they're eligible which there's no dispute i take it that your client was not eligible my client's not eligible to be a member at this time so if you just look at the affiliation prong or factor he doesn't have a lot to brag about with respect to that because it's a family connection he did get the medical help you mentioned before but the tribe itself had explicitly disavowed criminal jurisdiction over him and rejected his application for membership so if he was affiliated he wasn't in very good standing well the affiliation again comes from the tribes policy to provide free services to descendants of enrolled members and again a point to leboeuf which indicates that this resurfaced this is one form of affiliation correct right and remember this is an eleven fifty two case eighteen u s c eleven fifty two case where the government is required to prove beyond a reasonable doubt that he's not an indian but that they did at least that yuri adversaries are now we're we're trying to figure out whether that was a reasonable what the judge determined that i would submit that the judge that the evidence wasn't sufficient in that regard and again i would point to above look at the similarities in the buff were of the buff was an eleven fifty three case where the government had to prove beyond a reasonable doubt that the defendant was an indian but the above case is strikingly similar to this one he had received health benefits he had residence on the reservation he had social contacts with  reservation to some extent in a lot of ways mr aware is contacts are more significant than they were in the buff and can essentially the same quantum of evidence be both proved beyond a reasonable doubt of non indian status and see right that's these are not factual issues that you're asking us to review giving credit to the opposing party of evidence that was presented well again most of these facts are not i'm arguing application your honor of the test and again in roman so a person is either unrolled or affiliated we know that we can establish indian status based on that so he's not an old we're going to look to see whether he's affiliated on the first and most important factor we're going to look to is whether or not he's been rolled that simply doesn't make sense in that context those four descending factors are factors that we look at to test for recognition then recognition is broken down further by the words of the paper into enrollment or affiliation i guess look he was arrested prosecuting convicted under the jurisdiction of the tribal courts and here that was not the case is that right  non indian adult and that just simply doesn't seem to be consistent with the supreme court's precedent old phone so i would say never guards what they call the tribal court prosecution by putting on somebody on probation a parser rating them that was a tribal exercise jurisdiction over my client as an indian the government's witness testified that that was the case your honor we've taken you to the end of your time yes we'll hear from the government that will give  honour's my name is paul stearns i'm an assistant u s attorney from flagstaff arizona and i'm here on behalf of the united states this case and a case before it were brought to the flagstaff u s attorney's office because the tribal court had found the defendant was not subject to criminal jurisdiction in the form of hobby tribal court on four separate occasions in a span of approximately three months there were criminal violations that the defendant committed on the fort mojave indian reservation every one of those was not handled within the tribal court this court has set ins a pedo one of the reasons that we have a determination in the incest or the time period we look out is at the time of the offense and this is a notice function so on november fo two thousand and twelve he was charged criminally by the tribe november fifth two thousand and twelve the tribal court dismissed without prejudice with leave to allow the tribal officials to refile as a civil matter and it's undisputed that tribes do have civil jurisdiction over non native americans and they did that the citations that he was issued are in the government's supplemental excerpts of record so on in november of two thousand and twelve he knew that the tribal court did not believe use indian for purposes of jurisdiction the first case that was brought to the u s attorney's office was charge we specifically allege he was non native now that also and let me back up for second the the the first case that the tribal court dismissed involved an assault on his girlfriend and her initials r r r the second case also involved an assault on the girlfriend whose initials are r and that case was brought to my office and was also handled by mr morgan and myself that case was resolved without reaching this yeshu we have essentially did a plea under eighteen us you want to levin for assaulting a federal officer so we didn't reach the jurisdictional issue here the third case that was handled by the tr police and was referred to our office again as the case that we're here on today and that happened in february of two thousand and thirteen and then there was a fourth case that also happened in february of two thousand and thirteen where the defendant was arrested by the tribal police department for resisting arrest how do you mean a tribal member that case would have had to have been heard in the tribal court instead that was referred to the bullhead city justice court and he pled guilty he did not contest jurisdiction and he did five days in jail and that's also in the government's supplemental excerpts of record so we have four separate cases that the tribe had criminal proceedings and did not proceed against him criminally because they believed it was not made up and that's one of the big differences between this and the leboeuf case is that the defendant knew this when he committed that that centrally that third or perhaps the fourth because the third and fourth things were very close together in time for him he knew that the tribe did not want to exercise dress diction over him order and he didn't get the civil rights but the first case brought to the u s attorney's office which isn't this case he was represented by mr mole again and that's when the record and it was alleged that he was non native so certainly and that was also in november of two thousand and twelve so by the time we get to february of two thousand and thirteen he certainly knows now does he know we're going to end up at the ninth circuit i don't think he did he does he may not appreciate all of that but he certainly had knowledge that the court and it's also important i think that the subpoena said it's also important for the government officials to be able to have some certainty as well and the fort mojave tribal police of course referring these matters to the u s attorney's office or in one instance they did it to the bullhead city justice court i don't i don't think i did a very good job  recognize the sovereignty of the tribe and oh in here we should first of all this is different than leboeuf in the sense that the fan and has applied for membership three separate times and that we have no such evidence in the buff or any other case that i'm court proceedings an issue of tribal sovereignty to some degree i mean they basically said we don't have jurisdiction over this case and quite frankly had the u s attorney's office not prosecuted him there would have been no entity that could have prosecuted in a case like this were a victim case because that's not enough though if they say we don't have jurisdiction over him because once it gets referred and it's tried in your district in your district court there's a burden on the government to prove what they allege previously that is to say he's not an indian by virtue of the factors right that is correct your honor it is our he has the burden of production and i think the magistrate court correctly recognized that and then we have  the burden of persuasion which the magistrate court said we met beyond a reasonable doubt and if i could just touch briefly on the burden issue i think if you simply look at the factors and the analysis by the magistrate court that's one of his first points there is no burden shifting issue here the magistrate court essentially combined the arguments of the burden of production and the burden of persuasion and that's evident on page fourteen of his order re actually goes into the first prong of the bruce test the first prong isn't at issue here it's whether he had some indian blood but if you look at page fourteen of the order he basically says the defense has met his burden but then he goes on to talk about the first prong so when we look at the bernabeu option burden  persuasion issues in the brief i'm sorry in the magistrate court order he combined the analysis and the reality is i mean he the defendant criticises the magistrate court because he says that you know the defendant failed to establish the second  the burden of persuasion and burden of proof at the same time and it ultimately clicked concluded that the government had met its burden beyond a reasonable doubt and i think that the is there ever a case where there wouldn't be as here or there wouldn't be evidence criteria can't overcome the first three but the magistrate court did it meant that there was some evidence on the third and fourth and i can see that as well i mean what i think the primary evidence that defendant points to is essentially the medical evidence that that you know he had treatment at the union health services in the fort mojave medical clinic and the undisputed evidence in this case is that every single benefit that he got was based upon his status of his mother it's the senate status if you will not based on his own political affiliation so i think one of the ways to look at this case i'm really there's three questions you can ask was he treated like a de facto member of the union tribe i think that's pretty clear he wasn't this tribe made it clear they didn't want anything to do with him for criminal cases in three months not one of them to the tribal court handle the civil cases those happened fifteen twenty years ago it might have been a closer call when he was thirteen or fourteen when those things happened but number one the magistrate court correctly recognized that those are civil in nature in fact the defendant admits that on page forty one of his brief so it might have been a closer call a long time ago but at the time this happened he was not a de facto member the second thing is the this court can look out and up this court in means is talked about an affiliation it's got to be a political affiliation and i would submit that means more than just going and getting health care this man was a convicted felon he was relatively recently released from prison he spent ten years almost ten years in prison for a drive by shooting that didn't occur on the reservation it's very hard for somebody to get medical insurance at that so the fact that he takes advantage of a free benefit really means nothing and all of the mental health treatments director stablish he went there as a condition of his parole so i think if you look at that in those three ways what do you know at the time was or a political affiliation w your honor again i would remind the court that this is an eleven fifty two prosecution and the government had to prove that my client was not an indian beyond a reasonable doubt there's lots of reasons to doubt the stipulated evidence shows that he has a clear affiliation with the tribe by virtue of their policy of providing benefits to him as a descendant of an enrolled member bruv leboeuf clearly states that this is evidence of filiation i would also indian status of the victim was at issue that was the daughter and that she had been provided medical services by an indian hospital and the magistrate exercisers direction and had she been provided services in an indian hospital concluded beyond a reasonable doubt that under such that circumstances she was a defacto member of the tribe and the court went on to state without considering whether she is eligible for enrollment we conclude that her indian status was ampl demonstrated against mr low where a has significantly more affiliation with the fort mojave indian tribe this it is a tricky case of course and beyond reasonable doubt as is odd usually be reasonable doubt really refers to factual determination that may be in dispute here the real factual determination really aren't a dispute so it is one of the consequences upon factual beyond reasonable doubt doesn't quite fit it's just here