did not make his indian status an issue either before or at trial here we did it clearly in motions to suit dismissed before trial and at trial so i believe first year is no longer a good law given the supreme court what the district court did here was impose what it called a burden of production on the defense i really think it should have been under hester a burden of pleading history doesn't talk about production yet that's what the district court called it then instead of a and getting back to judge reimers point regarding roman we agree she's not enrolled at the same time that's not the end of the inquiry particularly under this case court's case and in durham which was reversed by the supreme court but then reinstate surprises me your honor that that's not what the prosecutor did in this case the ok defense you're saying she's an indian you have committed yourself to that position to the district court we're going to charge under eleven fifty three now defend the case and that's i'm surprised that's hasn't would like to be able to say you should reverse and double jeopardy bars three prosecution but what we're saying is eleven fifty two is a separate crime from eleven fifty three she was convicted of a crime eleven fifty two that she is not guilty of district court and perhaps be back here but we would unfortunately double jeopardy doesn't end the case cathal there is some suggestion in some very early cases henry is the one i've got in mind that that it's harmless  generally your honor if you read the decision carefully it's very distinct from this case there the indictment referenced section eleven fifty two but it listed as the elements eleven fifty three but the reality is this is a case that was originally from the record indicted under eleven fifty three was presented to the grand jury and that case was dismissed because they could not prove beyond reasonable doubt that she was an indian person and so it was really indicted under eleven fifty two when it was discovered she was not enrolled in not considered to be an indian person who is now it does not and so we actually have a trial want to eleven fifty two and about three weeks before trial the defendant raised they ethnicity issue in several motions one is alleging that the indictment was unclear saying that that it almost alleged she was an indian and therefore she'd already been punished by the tribe and so therefore the case should be pert present to carry the burden of production on the affirmative defense and i and the united states would suggest that that burden of production in a case such as this should be by a preponderance of the evidence that the defendant should present enough evidence by the by a preponderance of the evidence that the burden with then shift back to the government and in this case there just simply wasn't enough the court found as an fascial matter the evidence that was produced produced by her did not to the legal threshold to say that she was an indian person we're talking about two different tribes here we're talking about the fact that her mother is unrolled but enrolled in a different tried and there is a suggestion on the record that tribe exact and on those grounds we do have evidence that here that she has been treated as an indian in the past by the try we have we do have we do have some evidence that she was but she was committed to indian indian services for mental health treatment in the early ninety's and of the tribe and internet way we have a record of an arrest with a high the government treated her as an indian under under there from the laws that evidence was really never presented to  to the core during the finding phase in the trial in the trial if you look at the record and basically the united states presented their evidence about her assault on the child and then there was some argument about what should happen next and then the court found her mother actually testified it wasn't the defendant her mother testified that she had been born on a reservation and that she went camping or she would participate in this way out and that she had indian friends that's the evidence right she came for she came as to whether it would change here exactly because the court said i've looked at that as well i was talking about what the court considered at the time it made its ruling instead this doesn't even go to the jury and then the jury convicted her and then we had the motion to arrest a judgment which was responded to by the united states and if you look at the excerpts of record that deal with that whole issue starting out set to twenty seven which is the defendant's motion and allegations of ballots the fact is the tribe that treated characterization that's been made in the defense brief that she was an indian person when she was an out of control teenager who got arrested and got sent for mental health treatment i don't see anything in the order that indicates that they have made a finding under federal law appl g federal statutes that she is an indian person certainly her mother was an indian person and from her mother's own testimony it's kind of like this was a child as a teenager who was somewhat out of control and had to be arrested and be taken away and i don't think we can take anything more cannot just positional order then the fact that we have an enrolled mother living on the reservation with a child who is not enrolled who is completely out of control and it's mental health treatment and the tribe did something about it because she lived within the confines it made her under eleven fifty three assault on a child under the age of sixteen is a high misdemeanor punishable by up to a year and so i think it's possible although i can't answer that with any specific authority and i think the government's credit that they recognized from the beginning that they had indicted her wrongfully she was not an indian person and they wanted to make certain that they indicted her correctly went back and the court agreed and said this is a funny way to write statutes to have these two parallel statutes put and put you in th position could you indict and are both statutes that just that we've got to under one of the other now because under eleven fifty three you have to affirmatively allege and prove that she she or he is an indian person and so i don't think the government can take the position in front of a grand jury to say you know i don't have an answer to that question i think we were trying to argue some sort of equitable stoppel the fact that investigator boyd was aware of her indian status aware that she was made a ward of the tribes and sat there quickly if i can make a few points several cases of health at eleven fifty three the indian status it's an element of rochelle held that francisco which i just provided to the court before the hearings this morning held that the interracial status in other words the if you are not in india start there yes you can here i actually spoke to somebody from the native american rights fund about that question earlier this week and they didn't know the answer so i don't know the answer to that i would point out that after this incident in the kids being removed from this rusedski just custody in care she was treated by the spotted bull treatment center on the forecheck indian reservation she was also put into the fort peck parroting program two more programs that we believe would be reserved