FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 07-30384 Plaintiff-Appellee,

D.C. No.

v.  CR-07-00052-SEH

CHRISTOPHER PATRICK CRUZ,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Montana

Sam E. Haddon, District Judge, Presiding

Argued and Submitted

August 11, 2008—Billings, Montana

Filed February 10, 2009

Before: Alex Kozinski, Chief Judge, Stephen Reinhardt and

Sidney R. Thomas, Circuit Judges.

Opinion by Judge Reinhardt;

Dissent by Chief Judge Kozinski

1595
COUNSEL

Ryan M. Archer, Assistant United States Attorney, United

States Attorney’s Office for the District of Montana, Helena,

Montana, for the plaintiff-appellee. 

UNITED STATES v. CRUZ 1597
Joseph E. Thaggard, Assistant United States Attorney, United

States Attorney’s Office for the District of Montana, Helena,

Montana, for the plaintiff-appellee.

R. Henry Branom Jr., Assistant Federal Defender, Federal

Defender for the District of Montana, Great Falls, Montana,

for the defendant-appellant. 

OPINION

REINHARDT, Circuit Judge: 

At first glance, there appears to be something odd about a

court of law in a diverse nation such as ours deciding whether

a specific individual is or is not “an Indian.”

1

 Yet, given the

long and complex relationship between the government of the

United States and the sovereign tribal nations within its borders, the criminal jurisdiction of the federal government often

turns on precisely this question — whether a particular individual “counts” as an Indian — and it is this question that we

address once again today. 

As our court has noted before, the law governing “[t]he

exercise of criminal jurisdiction over Indians and Indian country [encompasses] a ‘complex patchwork of federal, state, and

tribal law,’ which is better explained by history than by

logic.” United States v. Bruce, 394 F.3d 1215, 1218 (9th Cir.

2005) (quoting Duro v. Reina, 495 U.S. 676, 680 n.1 (1990)).

From that history, and from various cases we have decided

over the years, our circuit has distilled a specific test for determining whether an individual can be prosecuted by the federal

government under 18 U.S.C. § 1153, a statute governing the

conduct of Indians in Indian Country. We announced that test

1Although some prefer the term “Native American” or “American Indian,” we use the term “Indian” throughout this opinion as that is the term

employed in the statutes at issue in this appeal. 

1598 UNITED STATES v. CRUZ
in United States v. Bruce, 394 F.3d 1215 (9th Cir. 2005), a

case that both parties agree controls our analysis today.

Because the evidence adduced during Christopher Cruz’s trial

does not satisfy any of the four factors outlined in the second

prong of the Bruce test, we hold that, even when viewed in

the light most favorable to the government, his conviction

cannot stand. The district court’s failure to grant Cruz’s

motion for judgment of acquittal was plain error, and accordingly we reverse. 

I.

Cruz was born in 1987 to Roger Cruz and Clara Clarice

Bird. His father is Hispanic and his mother is 29/64 Blackfeet

Indian and 32/64 Blood Indian. The Blackfeet are a federally

recognized tribe based in northern Montana; the Blood Indians are a Canadian tribe. Given his parents’ heritage, Cruz is

29/128 Blackfeet Indian and 32/128 Blood Indian. 

For a period of three or four years during his childhood,

Cruz lived in the town of Browning, Montana on the Blackfeet Reservation. Between the age of seven and eight, he

moved off the reservation and spent the next ten years living

first with his father in Great Falls, Montana and subsequently

with his uncle in Delano, California. Neither Great Falls nor

Delano is located on an Indian reservation or otherwise

located in Indian country.2 In 2005, Cruz returned to Montana,

living for a period of time in the town of Cut Bank, which is

located just outside the boundaries of the Blackfeet Reservation. Shortly before the incident underlying this case, Cruz

2

“[T]he term ‘Indian country’ . . . means (a) all land within the limits

of any Indian reservation under the jurisdiction of the United States Government . . . (b) all dependent Indian communities within the borders of

the United States whether within the original or subsequently acquired territory thereof . . . and (c) all Indian allotments, the Indian titles to which

have not been extinguished, including rights-of-way running through the

same.” 18 U.S.C. § 1151. 

UNITED STATES v. CRUZ 1599
moved back to Browning, where he rented a room at the

Town Motel. 

On December 21, 2006, Cruz and a group of friends spent

a part of the evening drinking in his room at the Town Motel.

While standing outside the motel talking on a cordless phone

to his girlfriend, Cruz was approached by Eudelma White

Grass, who had been drinking in a neighboring room and was

heavily intoxicated. An altercation took place in which White

Grass was severely injured. 

Cruz was arrested and charged with “[a]ssault resulting in

serious bodily injury,” 18 U.S.C. § 113(a)(6), which is a federal offense when committed by an Indian on an Indian reservation, 18 U.S.C. § 1153. He pled not guilty and went to trial,

where his Indian status was a contested issue. At the close of

the government’s case-in-chief, Cruz moved for judgment of

acquittal, contending that the government failed to establish

his Indian status by proof beyond a reasonable doubt.3 The

district court denied the motion. Cruz subsequently took the

stand in his own defense and was ultimately convicted. He

now appeals, arguing that there was insufficient evidence that

he is an Indian under § 1153 and that the district court committed reversible error when instructing the jury as to how to

determine his Indian status. 

II.

The standard of review to be applied on appeal is contested

by the parties. We begin by observing that, even though the

question “of Indian status operates as a jurisdictional element

under § 1153,” Bruce, 394 F.3d at 1228, de novo review is not

appropriate given the posture of this case. Although jurisdictional questions are ordinarily reviewed de novo, when a

defendant brings a motion for acquittal in order to challenge

3As Cruz’s Indian status is the central issue on appeal, we discuss the

evidence introduced regarding this question in the text below. 

1600 UNITED STATES v. CRUZ
the sufficiency of the evidence underlying a jurisdictional element, we owe deference to the jury’s ultimate factual finding.4

See United States v. Gomez, 87 F.3d 1093, 1097 n.3 (9th Cir.

1996) (citing United States v. Vasquez-Velasco, 15 F.3d 833,

838-39 (9th Cir. 1994)). Accordingly, if such a challenge is

properly made, we review the district court’s decision under

the standard applied to sufficiency-of-the-evidence challenges: “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)

(emphasis omitted); see United States v. Vizcarra-Martinez,

66 F.3d 1006, 1009-10 (9th Cir. 1995); see also United States

v. Morgan, 238 F.3d 1180, 1185-86 (9th Cir. 2001) (noting

applicability of this standard to jurisdictional elements). 

Here, however, Cruz’s sufficiency-of-the-evidence challenge made at the close of the prosecution’s case-in-chief was

not preserved because no new challenge was made following

submission of all of the evidence. “The proper way . . . to

4This is not the case when the defendant moves for acquittal at the close

of the government’s case-in-chief and the district court defers ruling on

that motion until it has reviewed all of the evidence. In that situation, we

review “the motion on the basis of the evidence at the time the ruling was

reserved.” Fed. R. Crim. P. 29(b). However, where, as here, the district

judge does not defer ruling but instead rules immediately, “a defendant

waives his objection to the trial court’s denial of a motion for acquittal . . .

if he elects to present evidence on his own behalf.” United States v. Alexander, 48 F.3d 1477, 1490 n.10 (9th Cir. 1995). Under such circumstances, “all the evidence — including the evidence presented by the

defendant — can be considered.” Id.

We note that the terms of art “motion for judgment of acquittal” and

“challenge to the sufficiency of the evidence” are functionally equivalent:

“Rule 29 motions for acquittal do not need to state the grounds upon

which they are based because ‘the very nature of such motions is to question the sufficiency of the evidence to support a conviction.’ ” United

States v. Viayra, 365 F.3d 790, 793 (9th Cir. 2004) (quoting United States

v. Gjurashaj, 706 F.2d 395, 399 (2d Cir. 1983)). Accordingly, we use the

terms interchangeably. 

UNITED STATES v. CRUZ 1601
challenge the sufficiency of the government’s evidence pertaining to [a] jurisdictional element . . . is a motion for acquittal under Rule 29, presented at the close of the government’s

case-in-chief.”

5 Morgan, 238 F. 3d at 1186 (internal quotation

marks omitted) (quoting United States v. Nukida, 8 F.3d 665,

672-73 (9th Cir. 1993). But should such a motion be denied,

it must be renewed following submission of all the evidence

or it is deemed waived. United States v. Alvarez-Valenzuela,

231 F.3d 1198, 1200 (9th Cir. 2000). Cruz failed to renew his

motion. As a result, the standard of review in this case rises

to the at least theoretically more stringent “plain error” standard. Id. at 1200-01 We say “theoretically” because, while

plain-error review appears more stringent in theory, it is hard

to comprehend how a standard can be any more stringent in

actuality than that ordinarily applied to sufficiency-of-theevidence challenges. As we observed in Vizcarra-Martinez:

[U]nder our ordinary test — the standard applicable

when the defendant makes all the proper motions —

we cannot reverse unless there is a clear showing as

to insufficiency: we must affirm if any rational trier

of fact could have found the evidence sufficient.

Thus, it is difficult to imagine just what consequences flow from our application of the [plain

error] standard[ ] or to envision a case in which the

result would be different because of the application

of one rather than the other of the standards. 

66 F.3d at 1010. Our case law, however, has repeatedly

parsed the increasingly thin differences between standards of

review, slicing ever finer and finer distinctions whose practical consequences are seemingly minuscule, if not micro5Alternatively, the defendant may forego the opportunity to move for

acquittal at the close of the government’s case-in-chief and may instead

make such a motion after presenting a defense, see Fed. R. Crim. P. 29(a),

although prudent counsel are unlikely to pass on the opportunity to make

the motion at both junctures. 

1602 UNITED STATES v. CRUZ
scopic. As a result of these exercises in abstraction, our

standards of review continue to multiply, the relationships

between them growing more obscure with each iteration. Still,

because an existing decision of this court has clearly held that

plain-error review applies when a jurisdictional element is the

subject of an unrenewed motion for acquittal, we dutifully

apply that standard in this case. See Morgan, 238 F.3d at

1186; see also United States v. Singh, 532 F.3d 1053, 1056-57

(9th Cir. 2008). 

Under plain-error review, reversal is permitted only when

there is (1) error that is (2) plain, (3) affects substantial rights,

and (4) “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States,

520 U.S. 461, 467 (1997) (quoting United States v. Olano,

507 U.S. 725, 732 (1993)). When a conviction is predicated

on insufficient evidence, the last two prongs of the Olano test

will necessarily be satisfied: A defendant’s “substantial

rights,” as well as the “fairness” and “integrity” of the courts,

are seriously affected when someone is sent to jail for a crime

that, as a matter of law, he did not commit, or when the court,

as a matter of law, has no jurisdiction to try him for the

alleged offense. See United States v. Dominguez Benitez, 542

U.S. 74, 81 (2004) (quoting Kotteakos v. United States, 328

U.S. 750, 776 (1946)); see also United States v. GarciaGuizar, 160 F.3d 511, 517 (9th Cir. 1998) (noting that even

under plain error review, a court should not “affirm a conviction and send a defendant to prison or his death if the record

clearly showed that the evidence was insufficient” (quoting

Vizcarra-Martinez, 66 F.3d at 1010)); cf. United States v.

Mize, 756 F.2d 353, 355 (5th Cir. 1985) (“[E]rroneous

instructions concerning the essential jurisdictional element of

the crime charged affect substantial rights of the defendant.”).

Therefore, the analysis in this case turns primarily on the first

two Olano prongs: Was the denial of Cruz’s motion for judgment of acquittal error, and was it plainly so? Because Cruz

“elect[ed] to present evidence on his own behalf . . . all the

evidence — including the evidence presented by the defenUNITED STATES v. CRUZ 1603
dant — can be considered” in this analysis. United States v.

Alexander, 48 F.3d 1477, 1490 n.10 (9th Cir. 1995). 

III.

[1] A “defendant’s Indian status is an essential element of

a § 1153 offense which the government must allege in the

indictment and prove beyond a reasonable doubt.” Bruce, 394

F.3d at 1229. We recently established the test for determining

an individual’s Indian status under 18 U.S.C. § 1152 in

United States v. Bruce, 394 F.3d 1215 (9th Cir. 2005), and the

same test applies to the determination of Indian status under

§ 1152’s companion statute, 18 U.S.C. § 1153. The Bruce test

requires that the Government prove two things: that the defendant has a sufficient “degree of Indian blood,” and has “tribal

or federal government recognition as an Indian.” Id. at 1223,

1224 (quoting United States v. Keys, 103 F.3d 758, 761 (9th

Cir. 1996)). 

[2] Cruz concedes that he meets the first prong of the test

since his blood quotient is twenty-two percent Blackfeet.

Only the second prong, therefore, is at issue here. In Bruce we

outlined four factors that govern the second prong; those four

factors are, “in declining order of importance, evidence of the

following: ‘1) tribal enrollment; 2) government recognition

formally and informally through receipt of assistance reserved

only to Indians; 3) enjoyment of the benefits of tribal affiliation; and 4) social recognition as an Indian through residence

on a reservation and participation in Indian social life.” Id. at

1224 (quoting United States v. Lawrence, 51 F.3d 150, 152

(8th Cir. 1995)); accord. United States v. Ramirez, 537 F.3d

1075, 1082 (9th Cir. 2008).6

6

In United States v. Ramirez, the only issue apparently raised by the parties was whether “the documents produced at trial” were sufficient to demonstrate that the individuals in question were in fact enrolled members of

the relevant tribe and therefore whether the first Bruce factor was satisfied.

537 F.3d at 1082. Presumably, since no other issue was addressed, the par1604 UNITED STATES v. CRUZ
Taken in the light most favorable to the government, the

record reveals the following facts related to Cruz’s Indian status: 

1. Cruz is not an enrolled member of the Blackfeet

Tribe of Indians or any other tribe. 

2. Cruz has “descendant” status in the Blackfeet

Tribe as the son of an enrolled member (his

mother), which entitles him to use Indian Health

Services, to receive some educational grants,

and to fish and hunt on the reservation. 

3. Cruz has never taken advantage of any of the

benefits or services to which he is entitled as a

descendant.

4. Cruz lived on the Blackfeet Reservation from

the time he was four years old until he was

seven or eight. He rented a room in a motel on

the reservation shortly before the time of the

offense. 

ties in Ramirez did not dispute that the other evidence presented at trial,

when combined with a finding that the individuals were enrolled members, “was sufficient to establish [their] status as ‘Indians’ within the

meaning of § 1152.” Id. at 1083. As Bruce itself makes clear, “[t]ribal

enrollment is ‘the common evidentiary means of establishing Indian status, but it is not the only means nor is it necessarily determinative’ . . . .

[E]nrollment, and indeed, even eligibility therefor, is not dispositive of

Indian status.” 394 F.3d at 1224-25 (quoting United States v. Broncheau,

597 F.2d 1260, 1263 (9th Cir. 1979)). Although the parties in Ramirez

raised only a limited question, the opinion specifically acknowledges the

Bruce test and the four applicable factors that are determinative of its second prong. See Ramirez, 537 F.3d at 1082. Because the dispute on appeal

related to the facts underlying only one of the factors, the court had no reason to note the relative weight of the various other factors — specifically,

that they are to be considered “in declining order of importance.” Bruce,

394 F.3d at 1224. But cf. Dissenting Op. at 1615. 

UNITED STATES v. CRUZ 1605
5. As a descendant, Cruz was subject to the criminal jurisdiction of the tribal court7

 and was at

one time prosecuted in tribal court.

6. Cruz attended a public school on the reservation

that is open to non-Indians and worked as a firefighter for the federal Bureau of Indian Affairs,

a job that is also open to non-Indians. 

7. Cruz has never participated in Indian religious

ceremonies or dance festivals, has never voted

in a Blackfeet tribal election, and does not have

a tribal identification card. 

[3] Analyzing this evidence, it is clear that Cruz does not

satisfy any of the four Bruce factors. As to the first and most

important factor, it is undisputed that Cruz is not an enrolled

member of the Blackfeet Tribe or any other tribe. In fact,

Cruz is not even eligible to become an enrolled member of the

Blackfeet Tribe, as he has less than one quarter Blackfeet

blood, which is the minimum amount necessary for enrollment.8

7The parties have not cited to us any Blackfeet ordinances or codes

establishing this point. As we explain infra pp.1611-12 & note 15, the fact

that charges were brought against Cruz in tribal court does not necessarily

mean the tribal court had jurisdiction over him. Our own reading of the

Blackfeet code suggests that perhaps the tribe’s criminal jurisdiction is

limited to enrolled members of the Blackfeet Tribe and other tribes. Cf.

BLACKFEET CODE § 1.1 (“The Blackfeet Tribal Court has jurisdiction over

all persons of Indian descent, who are members of the Blackfeet Tribe of

Montana and over all other American Indians unless its authority is

restricted by an Order of the Secretary of the Interior.”) (emphasis added).

It is undisputed that Cruz is not an enrolled member of the Blackfeet Tribe

or a member of any other American Indian tribe. However, because the

Director of Tribal Enrollment testified that Cruz was subject to the tribe’s

criminal jurisdiction by virtue of his descendant status, and because Cruz

did not contest this point below or on appeal, we assume for purposes of

our analysis that Cruz was subject to the tribal court’s jurisdiction. 

8We also note that BLACKFEET ORD. 14, which establishes “procedures

governing enrollment” and which was admitted into evidence at trial,

states that children born after August 30, 1962 must have “one-fourth

1606 UNITED STATES v. CRUZ
See BLACKFEET CONST. art. II, amd. III, § 1(c). Our dissenting

colleague would hold that the government has “plainly” met

its burden under Bruce because it has established that Cruz

has “ ‘descendant’ status” and has therefore been “recognized” by “the tribal authorities.” Dissenting Op. at 1614-15.

The government, however, has expressly waived any argument that Cruz satisfies the first Bruce factor, and does not

contend that his descendant status, in and of itself, is a factor

we should consider in performing the Bruce analysis.9 Rather,

the government’s argument is that “descendant status” is relevant only insofar as it renders someone “eligible to receive

certain assistance reserved for Native Americans,” language

that directly tracks the second Bruce factor, except for substituting “eligible to receive” for actually receives. However, as

we explain below, mere eligibility for benefits is of no consequence under Bruce. Given Bruce’s clear admonition that

“tribal enrollment,” and therefore a fortiori descendant status,

“is not dispositive of Indian status,” 394 F.3d at 1224-25, we

reject the dissent’s argument that mere descendant status with

the concomitant eligibility to receive benefits is effectively

sufficient to demonstrate “tribal recognition.” To do otherwise

would elevate tribal status to a “dispositive” determinant of

degree of Blackfeet Indian blood or more” in order to qualify for descendant status as well. Id. § 2(d). Under this ordinance, Cruz would not

appear to qualify for any tribal status whatsoever. However, because the

Director of Tribal Enrollment testified that Cruz enjoys descendant status

— apparently despite the tribal regulations to the contrary — we treat him

as enjoying that status for purposes of our analysis. We note the incongruity between his blood quotient and the tribal ordinance only to underscore

the error of the dissent’s placing near exclusive weight on Cruz’s descendant status in concluding that Cruz is an Indian. 

9This concession reflects a sensible understanding of the law. If, for

example, a tribal authority declared that anyone with an ancestor who was

a member of the tribe, no matter how distant, counts as a “descendant,”

we would be hard pressed to consider such an individual subject to prosecution under § 1153, even though “tribal authorities [would clearly] recognize [such a person] as an Indian” under our dissenting colleague’s

formulation. Dissenting Op. at 1615 (emphasis omitted). 

UNITED STATES v. CRUZ 1607
Indian status, as Bruce explicitly forbids. Furthermore, given

the government’s explicit waiver of the argument, to hold as

the dissent suggests would violate our longstanding general

rule that we will not decide questions not raised by the parties

before us. See, e.g., Kimes v. Stone, 84 F.3d 1121, 1126 (9th

Cir. 1996); cf. United States v. Ziegler, 497 F.3d 890, 901 (9th

Cir. 2007) (Kozinski, J., dissenting from denial of rehearing

en banc) (“We apply [the waiver] rule with some vigor

against criminal defendants; we should be no less vigorous in

applying it against the government.” (internal citation omitted)). 

[4] Nor is there any evidence that Cruz satisfies the second

most important factor, “government recognition . . . through

receipt of assistance reserved only to Indians.” Bruce, 394

F.3d at 1224 (emphasis added). To the contrary, the only evidence in the record demonstrates that the opposite is true:

Cruz testified that he had never “received . . . any benefits

from the Blackfeet Tribe,” and the government did not present

any evidence to the contrary.10 Nor did Cruz enjoy any benefits of tribal affiliation, as required by Bruce’s third most

important factor. There is no evidence that he hunted or fished

on the reservation, nor has it been suggested that his employment with the BIA was related to or contingent upon his tribal

heritage.11 The only evidence supporting any of the Bruce factors is that, for less than a quarter of his short life, Cruz lived

10While Cruz did attend school on the reservation for a period of time,

the school was open to non-Indians. 

11Employment with the BIA is open to non-Indians. While it is true that

the BIA is permitted to give preference to Indians when making hiring

decisions, see 25 U.S.C. §§ 472, 472a; Morton v. Mancari, 417 U.S. 535

(1974); 25 C.F.R. § 5.1, there is no indication in the trial record that Cruz

ever received any preferential treatment on the basis of his ancestry. In

fact, Cruz would not have been eligible for preferential treatment under

the Indian Preference Laws, as he is not a member of a recognized tribe

and has less than “one-half or more Indian blood of tribes indigenous to

the United States.” 25 C.F.R. § 5.1. 

1608 UNITED STATES v. CRUZ
on the Blackfeet Reservation.12 But even this only partially

supports the government’s position under the fourth Bruce

factor, which also requires a showing of “participation in

Indian social life.” Id. Testimony both from Cruz and from a

government witness indicated that Cruz does not practice

Indian religion, has never “in any way participated in Native

religious ceremonies,” does not participate in Indian cultural

festivals or dance competitions, has never voted in a Blackfeet

election, and does not carry a tribal identification card. The

government did not present any evidence suggesting that Cruz

participated in any way in Indian social life. 

[5] In sum, the evidence in this case, when taken in the

light most favorable to the government, demonstrates that

Cruz satisfies at best only a small part of the least important

of the four Bruce factors. He does not satisfy any of the factors in full, and there is not even a scintilla of evidence suggesting that he satisfies a single one of the three most

important factors. Were we to hold that evidence satisfying

merely a portion of the least important Bruce factor is, in

itself, sufficient to support a § 1153 conviction, we would be

ignoring Bruce’s mandate in various respects, including its

requirement that the factors be considered “in declining order

of importance.”

13 Id. The first three factors could not realisti12Although we base our analysis on the evidence in the record and not

on the Pre-Sentencing Report, we note that the Report indicates that Cruz

“returned to [the reservation] shortly before the instant offense.” The evidence at trial was that he lived on the reservation for three to four years

during his childhood and then moved back shortly before the instant

offense. 

13The dissent would have us excise this portion of Bruce’s holding from

that opinion by dismissing it as “a stray comment.” Dissenting Op. at

1615. This is a curious suggestion from our colleague, who, at one point,

was the most vigorous proponent of the proposition that “an[y] issue germane to the eventual resolution of the case, [that has been] resolve[d] after

reasoned consideration in a published opinion [is] the law of the circuit.”

United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en banc)

(Kozinski, J., concurring) (emphasis added); see also Miller v. Gammie,

UNITED STATES v. CRUZ 1609
cally be deemed more important than the fourth if a partial

satisfaction of the fourth could outweigh the complete failure

to satisfy any of the first three. 

The government does not dispute our assessment of the

record. Rather, in light of the near total lack of evidence that

could satisfy the Bruce test as it is written, it urges us to

expand Bruce by holding that mere “eligibility for . . . assistance” reserved to Indians is sufficient under the second

Bruce factor.14 But this is not what Bruce says. Bruce says

that the second factor requires a showing of “receipt of assistance reserved only to Indians.” Id. (emphasis added). We are

not empowered to ignore such clear language in our circuit’s

precedent, see Miller v. Gammie, 335 F.3d 889, 899 (9th Cir.

2003) (en banc), especially when construing a statute that

creates a “carefully limited intrusion of federal power into the

otherwise exclusive jurisdiction of the Indian tribes,” Bruce,

394 F.3d at 1220 (emphasis added) (quoting United States v.

Antelope, 430 U.S. 641, 642-43 n.1 (1977). 

Even were we free to follow the government’s recom335 F.3d 889, 900-01 (9th Cir. 2003) (en banc) (Kozinski, J., concurring).

Here, the factors announced in Bruce and their relation to one another

were indisputably part of the reasoning employed by the court in reaching

its central holding. Accordingly, even under our dissenting colleague’s

more recent view on the due weight (or lack thereof) to be accorded to

dicta, the language in Bruce cannot be ignored as the dissent urges

because it is clearly not dicta. Cf. Espinosa v. United Student Aid Funds,

Inc., 545 F.3d 1113, 1119 n.3 (9th Cir. 2008) (Kozinski, J.) (“Anything [a

prior case] has to say as to matters not presented in that case is . . . dicta

and thus not binding on us.”). Unless and until some intervening higher

authority alters Bruce, we are bound by that decision. See Miller, 335 F.3d

at 899 (majority opinion). 

14As indicated above, the record demonstrates that descendants of

enrolled Blackfeet members are entitled to use Indian Health Services, are

eligible for certain scholarships, and are permitted to hunt and fish on the

reservation. The government does not dispute that Cruz never took advantage of any of these benefits. 

1610 UNITED STATES v. CRUZ
mended course, we would not. The four factors that constitute

the second Bruce prong are designed to “probe[ ] whether the

Native American has a sufficient non-racial link to a formerly

sovereign people.” Bruce, 394 F.3d at 1224 (quoting St.

Cloud v. United States, 702 F. Supp. 1456, 1461 (D.S.D.

1988)). Bruce intentionally requires more than a simple blood

test to determine whether someone is legally deemed an

Indian. Given that many descendants of Indians are eligible

for tribal benefits based exclusively on their blood heritage,

the government’s argument would effectively render the second Bruce factor a de facto nullity, and in most, if not all,

cases would transform the entire Bruce analysis into a

“blood” test. Cf. id. at 1223. For similar reasons, we cannot

accept our dissenting colleague’s argument that the sole test

under Bruce’s second prong “is whether the tribal authorities

recognize [someone] as an Indian, not whether he considers

himself one.” Dissenting op. at 1615 (second emphasis

added). Under Bruce, the extent to which an individual considers himself an Indian — whether by deciding, for example,

to “reside[ ] on a reservation,” to “participat[e] in Indian

social life,” or to “recei[ve] assistance reserved only to Indians,” Bruce, 394 F.3d at 1224 — is most certainly relevant in

determining his Indian status. The dissent simply ignores the

fact that Bruce clearly requires an analysis from the perspective of both the tribe and the individual. 

The government and our dissenting colleague also argue

that the fact that Cruz was prosecuted by the Blackfeet tribal

court demonstrates that he is an Indian because a “tribe has

no jurisdiction to punish anyone but an Indian.” Id. at 1227;

see Dissenting Op. at 1615. This argument is meritless for

multiple reasons. First and foremost, the record in this case is

incredibly thin with respect to Cruz’s contact with the tribal

justice system: all we know is that he has “been prosecuted.”

There is no evidence regarding the nature of that prosecution,

to what stage, if any, it proceeded, and certainly the record

does not indicate whether Cruz was ever determined for purposes of that prosecution to be an Indian. Finally, the record

UNITED STATES v. CRUZ 1611
does not suggest that the prosecution resulted in a conviction.

Based on the evidence contained in the trial record, which is

all that we may consider, Cruz’s case may well have been dismissed for lack of jurisdiction after a finding that he is not an

Indian.15

[6] Furthermore, while the government makes much of the

fact that the court in Bruce considered the exercise of tribal

jurisdiction over the defendant throughout her entire lifetime

relevant, it fails to recognize the significantly different posture of that case. Bruce addressed a prosecution under § 1152.

However, under § 1152, the question of Indian status is an

affirmative defense. Id. at 1222-23 (citing United States v.

Hester, 719 F.2d 1041, 1043 (9th Cir. 1983)). Generally, “the

defendant must prove the elements of [an] affirmative defense

by a preponderance of the evidence,” unless some other standard is set by statute.16 United States v. Beasley, 346 F.3d 930,

15Our dissenting colleague would equate the power to arrest with the

power to determine Indian status, thereby delegating to every tribal police

officer the determination of whether an individual may be prosecuted federally as an Indian. See Dissenting Op. at 1615 (“[T]ribal authorities recognize [Cruz] as an Indian . . . . That they do is confirmed by the fact that

. . . the tribal police took him before the tribal court rather than turning

him over to state or federal authorities. How that case was finally resolved

is irrelevant . . . .” (second emphasis added)). We reject the dissent’s

unusual approach: both the legitimate reach of federal authority under the

Constitution and the delicate question of whether an individual “counts”

as an Indian for purposes of a federal criminal prosecution that could lead

to his incarceration are issues too important to be decided on the basis of

a single arrest and in the absence of any true judicial consideration. 

16“[O]nce a defendant has satisfied his burden of production with

respect to an affirmative defense, the burden shifts to the government to

disprove the defense beyond a reasonable doubt.” Dominguez-Mestas, 929

F.2d at 1383. Of course, the beyond-a-reasonable-doubt standard “requires

more exacting proof” than the preponderance-of-the-evidence standard.

Jones v. United States, 527 U.S. 373, 377 (1999). Simply put, “more ‘facts

in evidence’ are needed . . . when the proponent is required to establish

[a claim] not merely by a preponderance of the evidence but . . . beyond

a reasonable doubt.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253

(1986) (alteration and second omission in original) (quoting United States

v. Taylor, 464 F.2d 240, 242 (2d Cir. 1972). 

1612 UNITED STATES v. CRUZ
935 (9th Cir. 2003); see also United States v. DominguezMestas, 929 F.2d 1379, 1383 (9th Cir. 1991); cf. 18 U.S.C.

§ 17 (affirmative defense of insanity requires clear and convincing evidence). By contrast, under § 1153 Indian status is

“an essential element of [the] offense which the government

must . . . prove beyond a reasonable doubt” in every case.

Bruce, 394 F.3d at 1229 (emphasis added). All that Bruce

held was that “[t]he assumption and exercise of a tribe’s criminal jurisdiction . . . bolster[ed] the argument that Bruce met

her burden of producing sufficient evidence” for an affirmative defense. Id. at 1227. The court explicitly “caution[ed] that

Bruce was only required to meet a production burden,” which

it later described as a “mere” burden of production. Id.

(emphasis added). The burden here, by contrast, is on the government to prove Cruz’s Indian status beyond a reasonable

doubt. In this context, a showing that a tribal court on one

occasion may have exercised jurisdiction over a defendant is

of little if any consequence in satisfying the status element in

a § 1153 prosecution. 

[7] Because the evidence viewed in the light most favorable

to the government does not demonstrate that Cruz is an Indian

or that he meets any of the Bruce factors, no rational trier of

fact could have found that the government proved the statutory element of § 1153 beyond a reasonable doubt. Accordingly, the district court’s denial of the motion for judgment of

acquittal was error. Where the government has failed to show

that any of the Bruce factors has been satisfied, we have no

trouble concluding that the error was “clear” and “obvious.”

Olano, 507 U.S. at 734. As described earlier, a conviction that

erroneously rests on insufficient evidence necessarily implicates “substantial rights” and seriously affects the “fairness”

and “integrity” of the judicial process. Accordingly, the denial

of Cruz’s motion for acquittal was not only error, but was

plain error. We reverse the decision below and instruct the

district court to grant the motion for judgment of acquittal.17

17Because we reverse the district court’s denial of Cruz’s motion for

judgment of acquittal, we need not reach his claim that the district court

UNITED STATES v. CRUZ 1613
IV.

For the reasons stated above, the decision below is

REVERSED and the judgment of conviction VACATED. The district court is instructed to grant the motion for judgment of

acquittal. 

KOZINSKI, Chief Judge, dissenting: 

Because defendant has the requisite amount of Indian

blood, the only question is whether he has “tribal or government recognition as an Indian.” United States v. Bruce, 394

F.3d 1215, 1223 (9th Cir. 2005) (quoting United States v.

Broncheau, 597 F.2d 1260, 1263 (9th Cir. 1979) for the “generally accepted test,” derived from United States v. Rogers, 45

U.S. (4 How.) 567, 573 (1846)). He plainly does. The record

discloses that the Blackfeet tribal authorities have accorded

Cruz “descendant” status, which entitles him to many of the

improperly instructed the jury with respect to the relative weight the four

Bruce factors are to receive. However, since this question could well arise

in other prosecutions, we take this opportunity to explain that the district

court’s instruction in this case was erroneous because it failed to inform

the jury that the Bruce factors must be considered “in declining order of

importance,” as stated in Bruce. 394 F.3d at 1224; cf. supra note 13. When

a district court omits this crucial language, the jury receives no instruction

regarding the factors’ relative importance and may erroneously give the

various factors equal or disproportionate weight. A jury so instructed,

including Cruz’s jury, might place undue weight on, for example, the

fourth factor, which in this case was partially satisfied, and as a result may

mistakenly “convict without finding all the elements of a crime beyond a

reasonable doubt.” United States v. Rubio-Villareal, 967 F.2d 294, 297

(9th Cir. 1992). To avoid this problem, the words “in declining order of

importance” should, as a matter of course, always be included in a Bruce

instruction. Despite our dissenting colleague’s fervent protestation of outrage, see Dissenting op. at 1617-18, we are aware of nothing novel about

informing a jury what matters it should consider, and in what manner,

when determining whether an element of an offense has been met. 

1614 UNITED STATES v. CRUZ
benefits of tribal membership, including medical treatment at

any Indian Health Service facility in the United States, certain

educational grants, housing assistance and hunting and fishing

privileges on the reservation. 

That Cruz may not have taken advantage of these benefits

doesn’t matter because the test is whether the tribal authorities recognize him as an Indian, not whether he considers

himself one. That they do is confirmed by the fact that, when

he was charged with an earlier crime on the reservation, the

tribal police took him before the tribal court rather than turning him over to state or federal authorities. How that case was

finally resolved is irrelevant; what matters is that the tribal

authorities protected him from a state or federal prosecution

by treating him as one of their own. Finally, Cruz was living

on the reservation when he was arrested, another piece of evidence supporting the jury’s verdict. 

The majority manages to work its way around all of this

evidence by taking a stray comment in Bruce to the effect that

certain factors have been considered in “declining order of

importance” and turning it into a four-part balancing test. But

Bruce was not announcing a rule of law; it was merely reporting what it thought other courts had done: “[C]ourts have considered, in declining order of importance, evidence of [four

factors].” 394 F.3d at 1224. Bruce did not adopt this as any

sort of standard, nor did it have any cause to do so, as nothing

in Bruce turned on the relative weight of the factors. The

majority strains hard to make this part of Bruce’s holding, but

a fair reading of the opinion discloses that it’s not even dicta

because it’s descriptive rather than prescriptive. We recognized this the last time we applied the test by omitting any reference to the declining order of importance. See United States

v. Ramirez, 537 F.3d 1075, 1082 (9th Cir. 2008). 

Bruce borrowed the “declining order of importance” language from United States v. Lawrence, 51 F.3d 150, 152 (8th

Cir. 1995), and Lawrence itself was quoting the observation

UNITED STATES v. CRUZ 1615
of a district judge in an earlier case, St. Cloud v. United

States, 702 F.Supp. 1456, 1461-62 (D.S.D. 1988). The district

judge in St. Cloud did not cite most of the cases he relied on,

so it’s hard to tell whether his observation is correct, but he

did offer a note of caution that my colleagues overlook:

“These factors do not establish a precise formula for determining who is an Indian. Rather, they merely guide the analysis of whether a person is recognized as an Indian.” Id. at

1461. 

This is the opposite of what my colleagues do today: They

turn the four factors into a rigid multi-part balancing test, with

the various prongs reinforcing or offsetting each other,

depending on how they are analyzed. This is not what the

judge in St. Cloud had in mind, and certainly nothing like

what Bruce adopted as the law of our circuit. It is an invention

of the majority in our case, designed to take power away from

juries and district judges and give it to appellate judges. Nothing in the law, dating back to the Supreme Court’s opinion in

Rogers, justifies this fine mincing of the evidence. The question we must answer is whether there is enough evidence from

which a rational jury could have concluded beyond a reasonable doubt that Cruz was recognized as an Indian. Clearly

there was, and that’s the end of our task. 

The majority misreads Bruce and misrepresents my position: “Given Bruce’s clear admonition that ‘tribal enrollment,’

and therefore a fortiori descendant status, ‘is not dispositive

of Indian status,’ we reject the dissent’s argument that mere

descendant status with the concomitant eligibility to receive

benefits is effectively sufficient to demonstrate ‘tribal recognition.’ ” Maj. op. at 1607 (quoting Bruce, 394 F.3d at

1224-25). Bruce certainly doesn’t hold that tribal enrollment

is insufficient to support a finding of Indian status. Bruce

holds the converse: that the absence of tribal enrollment does

not preclude finding that defendant is an Indian—which was

the question presented here. To suggest, as does the majority,

that an individual who is enrolled as a member of a tribe

1616 UNITED STATES v. CRUZ
might not be an Indian after all is not only preposterous, it’s

unnecessary, as no one claims that Cruz was enrolled. 

Nor do I maintain, as the majority makes believe, that

Cruz’s descendant status is enough to make him an Indian.

Whether or not it is, there are additional facts here: Cruz’s

residence on the reservation and the fact that he was previously arrested and brought before the tribal court. The latter

is a fact that the Bruce majority held to be highly significant.

Bruce did not consider the disposition of prior tribal court

cases relevant and we are not free to disregard the arrest and

prosecution by tribal authorities on this spurious basis. 

Worse still, after huffing and puffing for 11 hefty paragraphs and 12 chubby footnotes trying to explain why the district court erred at all, the majority concludes in a single

opaque sentence that the error is “plain.” Just how plain can

this error be when the majority has to struggle so long and

hard to find any error at all? After complaining bitterly about

pointyheaded judges who “slic[e] ever finer and finer distinctions whose practical consequences are seemingly minuscule,

if not microscopic,” maj. op. at 1602-03, my colleagues pull

out a scalpel of their own and proceed to engage in the same

exercise, so that “our standards of review continue to multiply, the relationships between them growing more obscure

with each iteration.” Id. at 1603. Before reading today’s opinion, no one could have guessed its outcome and methodology.

Saying that the error is plain eviscerates the “plain” part of the

plain error standard. If this is plain error, no error isn’t. 

Not satisfied with merely reversing the verdict, the majority

goes a bridge too far by converting its novel four-part test into

a jury instruction. This is wholly unnecessary, as Cruz cannot

be tried again for violating 18 U.S.C. § 1153 because of double jeopardy. It is also wrong. We don’t instruct juries as to

how to weigh the evidence; that is their function, not ours.

Yet the majority now requires jurors to assign relative weight

to various pieces of evidence presented to them. I am aware

UNITED STATES v. CRUZ 1617
of no such instruction anywhere else in our jurisprudence and

the majority points to none. It is a bold step into uncharted

territory and, in my judgment, an unwise one. 

* * *

The majority engages in vigorous verbal callisthenics to

reach a wholly counter-intuitive—and wrong—result. Along

the way, it mucks up several already complex areas of the law

and does grave injury to our plain error standard of review. I

hasten to run in the other direction.

1618 UNITED STATES v. CRUZ