FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 03-30171 Plaintiff-Appellee,

D.C. No.

v.  CR-02-00089-SEH

VIOLET BRUCE,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Montana

Sam E. Haddon, District Judge, Presiding

Argued and Submitted

March 4, 2004—Seattle, Washington

Filed January 13, 2005

Before: Diarmuid F. O’Scannlain, Pamela Ann Rymer, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee;

Dissent by Judge Rymer

513
COUNSEL

John Rhodes and Anthony R. Gallagher, Federal Public

Defender’s Office, Missoula, Montana, Michael Donahoe,

Federal Defenders of Montana, Helena, Montana, for the

defendant-appellant. 

Marcia Hurd, William W. Mercer and Klaus P. Richter,

United States Attorney’s Office, Billings, Montana, for the

plaintiff-appellee. 

OPINION

BYBEE, Circuit Judge: 

Violet Bruce appeals her conviction for simple assault on

an Indian child less than 16 years of age on a reservation in

violation of 18 U.S.C. §§ 1152 and 113(a)(5). In her sole

claim of error, Bruce asserts that the case against her was

brought under the wrong statute. The government charged

516 UNITED STATES v. BRUCE
Bruce under § 1152, which covers offenses committed in

Indian country, but excepts crimes committed by an Indian

against another Indian. Bruce contends that she is an Indian,

and the government should have charged her under 18 U.S.C.

§ 1153, which covers certain offenses committed by an Indian

in Indian country. The district court denied her motion to dismiss on this ground. We conclude that Bruce presented sufficient evidence that, if believed, established her Indian status.

We further hold that the court’s error was not harmless. We

therefore reverse. 

FACTS AND PROCEEDINGS

In March 2002, Bruce, a resident of the Fort Peck Indian

Reservation in northeast Montana, choked her five-year-old

son, Cylus, and in so doing, bruised his face and neck. On

September 23, 2002, a grand jury indicted Bruce for assault

on a child less than 16 years of age on an Indian reservation,

in violation of 18 U.S.C. §§ 1152 and 113(a)(5). The indictment stated, “That on or about March 25, 2002, at or near

Wolf Point, in the State and District of Montana, and within

the exterior boundaries of the Fort Peck Indian Reservation,

being Indian country, the defendant, VIOLET BRUCE, did

assault another, an Indian person who had not attained the age

of 16 years . . . , all in violation of 18 U.S.C. §§ 1152 and

113(a)(5).” The indictment, thus, alleged that the victim was

an Indian person, but said nothing about Bruce’s status. 

Bruce admitted that she choked Cylus but, on her attorney’s

advice, she pled not guilty. During the district court proceedings, Bruce repeatedly argued that she was Indian. Before

trial, she moved to dismiss the indictment on the ground that

it should have been brought under 18 U.S.C. § 1153, which

applies to certain crimes by Indians, rather than § 1152, which

excepts crimes by Indians against Indians. The court denied

the motion. 

At trial, Bruce’s only defense was her claim of Indian status. At the close of the government’s case, Bruce again raised

UNITED STATES v. BRUCE 517
the argument in a motion for judgment of acquittal under Fed.

R. Crim. P. 29, which the district court also denied. At the

close of all of the evidence, the court considered her Indian

status defense at length. Bruce introduced evidence that she

is one-eighth Chippewa; that her mother is an enrolled member of the Turtle Mountain Tribe of Oklahoma; that she was

born on an Indian Reservation; that she currently lives on the

Fort Peck Indian Reservation; that two of her children are

enrolled members of an Indian tribe; that she has been treated

by Poplar Indian Health Services and the Spotted Bull Treatment Center; that whenever she was arrested it “had to have

been [by] a tribal person”; and that she has been arrested by

tribal authorities “all her life.” The district court concluded

that, under § 1152, Bruce’s Indian status was an affirmative

defense on which Bruce had the burden of production and that

she had not borne this burden. Accordingly, the court declined

to submit the issue to the jury. 

A jury convicted Bruce of violating § 1152 and the district

court sentenced her to three years’ probation. Following her

conviction, Bruce unsuccessfully moved to arrest the judgment under Fed. R. Crim. P. 34 on the basis of her claimed

Indian status. In support of her motion, Bruce introduced

additional evidence showing that in 1991 she was treated as

an Indian child by the Fort Peck Tribal Court, exercising

jurisdiction pursuant to the Indian Child Welfare Act, 25

U.S.C. § 1901 (2004). After her motion was denied, Bruce

took this appeal. 

STANDARD OF REVIEW

We review de novo the district court’s determination of

Indian status under 18 U.S.C. § 1152 because it is a mixed

question of law and fact. United States v. Eric B., 86 F.3d

869, 877 (9th Cir. 1996); United States v. Keys, 103 F.3d 758,

761 (9th Cir. 1996) (reviewing Indian status de novo). Mixed

questions of law and fact are those in which “the historical

facts are admitted or established, the rule of law is undisputed,

518 UNITED STATES v. BRUCE
and the issue is whether the facts satisfy the statutory standard.” Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19

(1982). 

DISCUSSION

A. Federal Criminal Jurisdiction in Indian Country

The exercise of criminal jurisdiction over Indians and

Indian country is a “complex patchwork of federal, state, and

tribal law,” which is better explained by history than by logic.

Duro v. Reina, 495 U.S. 676, 680 n.1 (1990). The historical

background of federal criminal jurisdiction in Indian country

can be traced to colonial times, when Indian territory was

entirely the province of the tribes and the tribes were understood to possess jurisdiction over all persons and subjects

present on Indian lands. See WILLIAM C. CANBY, JR., AMERICAN INDIAN LAW IN A NUTSHELL 133 (2004). This policy continued until shortly after the ratification of the Constitution,

when Congress extended federal jurisdiction to non-Indians

committing crimes against Indians in Indian territory. 1 Stat.

138 (1790); 1 Stat. 743 (1799); 2 Stat. 139 (1802). Congress

further extended criminal jurisdiction in 1817 to cover crimes

committed by Indians and non-Indians in Indian Country;

notably, Congress excepted intra-Indian offenses, or crimes in

which both the victim and perpetrator were Indian. 3 Stat. 383

(1817). 

The 1817 Act served as the predecessor to 18 U.S.C.

§ 1152, which is sometimes called the Indian General Crimes

Act (“IGCA”). Section 1152 makes federal enclave criminal

law—a concrete body of law governing areas within the sole

and exclusive jurisdiction of the United States—generally

applicable to crimes committed in “Indian country.” See 18

U.S.C. § 1151 (defining “Indian country”). Section 1152 provides in full: 

Except as otherwise expressly provided by law,

the general laws of the United States as to the punUNITED STATES v. BRUCE 519
ishment of offenses committed in any place within

the sole and exclusive jurisdiction of the United

States, except the District of Columbia, shall extend

to the Indian country. 

This section shall not extend to offenses committed by one Indian against the person or property of

another Indian, nor to any Indian committing any

offense in the Indian country who has been punished

by the local law of the tribe, or to any case where,

by treaty stipulations, the exclusive jurisdiction over

such offenses is or may be secured to the Indian

tribes respectively. 

In its original form, the IGCA ensured that federal criminal

laws reached non-Indians committing crimes in Indian country, while at the same time preserving the right of the tribes

to punish their own. See Oliphant v. Suquamish Indian Tribe,

435 U.S. 191, 201 (1978). 

The IGCA excepts from federal criminal jurisdiction three

categories of offenses that might otherwise be thought to be

within the jurisdiction of the tribes: “offenses committed by

one Indian against the person or property of another Indian,”

offenses committed by an Indian who has been punished by

the tribe, and cases secured by treaty to the exclusive jurisdiction of a tribe. 18 U.S.C. § 1152. Although the “plain language” of § 1152 covers crimes in Indian country committed

by non-Indians against non-Indians, Mull v. United States,

402 F.2d 571, 573 (9th Cir. 1968), the Supreme Court has

held that states retain exclusive jurisdiction over general

crimes committed by non-Indians against non-Indians in

Indian country. Organized Vill. of Kake v. Egan, 369 U.S. 60,

68 (1962); New York ex rel. Ray v. Martin, 326 U.S. 496

(1946); Draper v. United States, 164 U.S. 240 (1896); United

States v. McBratney, 104 U.S. 621 (1881). Thus, under the

IGCA, the criminal laws of the United States apply to

offenses committed in Indian country by non-Indians against

520 UNITED STATES v. BRUCE
Indians and by Indians against non-Indians; “[section] 1152

establishes federal jurisdiction over interracial crimes only.”

United States v. Prentiss, 256 F.3d 971, 974 (10th Cir. 2001)

(per curiam) (en banc). 

The exception in the IGCA preserves the right of tribal

courts to try offenses committed in Indian country by Indians

against Indians, while recognizing that Indian tribes generally

do not have jurisdiction over non-Indians. See Oliphant, 435

U.S. at 195-206 & n.8; see also 25 U.S.C. § 1302(2) (recognizing “the inherent power of Indian tribes . . . to exercise

criminal jurisdiction over all Indians”). The Supreme Court

has interpreted the exception as manifesting a broad congressional respect for tribal sovereignty in matters affecting only

Indians. See United States v. Quiver, 241 U.S. 602 (1916)

(broadly interpreting the intra-Indian offense exception to

extend to adultery involving an Indian participant). 

Following the Supreme Court’s decision in Ex Parte Crow

Dog, 109 U.S. 556 (1883), which held that neither federal nor

tribal courts had jurisdiction to try an Indian for the murder

of another Indian on a reservation, Congress revisited this policy. Congressional displeasure with the Crow Dog decision

led to the passage of a second statute, 18 U.S.C. § 1153,

designed to establish as federal crimes, fourteen named

offenses committed by Indians in Indian country. See United

States v. Broncheau, 597 F.2d 1260, 1265 (9th Cir. 1979),

cert. denied, 444 U.S. 859 (1979). As relevant for our purposes, § 1153 provides: 

Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely . . . an assault against an

individual who has not attained the age of 16 years

. . . shall be subject to the same law and penalties as

all other persons committing any of the above

offenses, within the exclusive jurisdiction of the

United States. 

UNITED STATES v. BRUCE 521
18 U.S.C. § 1153(a) (2004). Enacted in 1885, the Indian

Major Crimes Act (“IMCA”) guaranteed that Indians committing major crimes against other Indians would be treated with

the same rigor as non-Indian offenders. See Oliphant, 435

U.S. at 203 & n.4. The IMCA, the Court has recognized, is

a “ ‘carefully limited intrusion of federal power into the otherwise exclusive jurisdiction of the Indian tribes to punish Indians for crimes committed on Indian land.’ ” United States v.

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

United States, 412 U.S. 200, 209 (1973)).1 Assault against an

individual who has not attained the age of 16 years is one of

the enumerated crimes that the IMCA covers. 

We have recognized that the “limited intrusion” on Indian

sovereignty in the IMCA is itself confined to federal enclave

law. In United States v. Begay, 42 F.3d 486, 498 (9th Cir.

1994), we rejected the claim “that Indians may not be charged

for any criminal conduct beyond those crimes enumerated in

[the Indian Major Crimes Act].” We concluded that the IMCA

only concerns “the application of federal enclave law to Indians and has no bearing on federal laws of nationwide applicability that make actions criminal wherever committed.” Id.

(citing United States v. Top Sky, 547 F.2d 483, 484 (9th Cir.

1976)). Thus, we held that federal criminal laws of general,

nationwide applicability—such as the federal conspiracy statute, 18 U.S.C. § 371—apply to Indians unless a treaty specifically exempts them. Id. at 499 (citing United States v. Burns,

529 F.2d 114, 117 (9th Cir. 1975)). 

1The scope of the statute was expanded significantly by the Supreme

Court’s decision in Keeble, which held that an Indian charged pursuant to

the IMCA was entitled to request and receive instructions as to lesser and

included offenses if the evidence would permit the jury rationally to find

him guilty of the lesser offense and acquit him of the greater. Id. at 208-

09; see also United States v. John, 587 F.2d 683 (5th Cir. 1979) (upholding conviction on lesser and included offense); accord Felicia v. United

States, 495 F.2d 353 (8th Cir. 1974). 

522 UNITED STATES v. BRUCE
Despite these intrusions, tribal courts retain jurisdiction to

punish certain crimes occurring in Indian country. However,

under the Indian Civil Rights Act, 25 U.S.C. § 1301 et al.

(“ICRA”), tribal courts may not impose punishment greater

than a year’s imprisonment or a $5,000 fine, or both. Id.

§ 1302(7). Tribal courts may generally punish offenses committed by members of the tribe and may prosecute misdemeanors against Indians who are not members of that tribe. 25

U.S.C. § 1301(2); see also United States v. Lara, 124 S.Ct.

1628, 1636, 1639 (2004) (rejecting a challenge to the ICRA

Amendment and upholding the authority of Congress to “permit tribes, as an exercise of their inherent tribal authority, to

prosecute nonmember Indians,” but declining to reach the

question of “whether the Constitution’s Due Process or Equal

Protection Clauses prohibit tribes from prosecuting a nonmember citizen of the United States.”). Because the tribe’s

jurisdiction stems from its inherent authority, rather than federal delegation, successive prosecution by a tribe and the federal government does not run afoul of the Double Jeopardy

Clause, as the two are dual sovereigns. Id. at 1639. Nonetheless, Congress has statutorily forbidden a successive prosecution in federal court brought pursuant to § 1152 after the tribe

has imposed punishment for the offense. 18 U.S.C. § 1152. 

In addition to federal and tribal jurisdiction, there are statutes in which Congress has “unambiguously confer[red] jurisdiction on the State over major offenses committed by or

against Indians on Indian reservations.” Negonsott v. Samuels,

507 U.S. 99, 110 (1993) (construing The Kansas Act, 18

U.S.C. § 3243). Aside from statutory grants, the effect of the

Supreme Court’s decision in McBratney, 104 U.S. at 624, is

to recognize state jurisdiction for crimes committed by nonIndians against non-Indians on Indian territory. 

We can summarize these rules concerning criminal jurisdiction in Indian country as follows: 

1. Crimes in which both the perpetrator and victim

are Indian are subject to (a) federal jurisdiction under

UNITED STATES v. BRUCE 523
§ 1153 if the crime charged is one of the fourteen

enumerated crimes (and conviction may extend to

lesser included offenses), or if the federal statute is

one of general applicability; (b) state jurisdiction

where authorized by Congress; and (c) tribal jurisdiction, perhaps running concurrent with either federal or state jurisdiction, although punishment is

limited to no more than one year and $5,000. 

2. Crimes in which the perpetrator, but not the victim, is Indian are subject to (a) federal jurisdiction

under § 1152 (except where the tribe has already

imposed punishment or the tribe has exclusive jurisdiction through treaty), or § 1153 (if the crime is one

of the fourteen enumerated crimes, with conviction

perhaps extending to lesser included offenses), and

pursuant to federal criminal laws of general applicability; (b) state jurisdiction where authorized by

Congress; and (c) tribal jurisdiction, perhaps running

concurrently with either federal or state jurisdiction,

although punishment is limited to no more than one

year and $5,000.2

3. Crimes in which the victim, but not the perpetrator, is Indian are subject to (a) federal jurisdiction

under § 1152, as well as pursuant to federal criminal

laws of general applicability, and (b) state jurisdiction where authorized by Congress. 

4. Crimes in which both the perpetrator and victim

2Offenses committed by Indians against multiple victims, including

both Indians and others, would fall subject to competing, and perhaps concurrent, claims of federal, state and tribal jurisdiction, although presumably a federal court could not impose punishment for an offense covered

by § 1152 after a tribal court had done so. 

524 UNITED STATES v. BRUCE
are non-Indian are subject to state jurisdiction or federal criminal laws of general applicability.3

See United States v. Johnson, 637 F.2d 1224, 1231 n.11 (9th

Cir. 1980); JULIE WREND & CLAY SMITH, AMERICAN INDIAN

LAW DESKBOOK 99-100 (1998). 

We note that the complex scheme established by Congress

creates obvious gaps in federal jurisdiction to punish crimes

in Indian country. For example, a non-Indian may be charged

under § 1152 when the victim is an Indian; if his victim is a

non-Indian, he generally must be charged under state law. An

Indian may be charged with a host of federal crimes under

§ 1152 if his victim is a non-Indian, but generally only with

major crimes under § 1153 if his victim is an Indian. See

Antelope, 430 U.S. at 646-47 (rejecting an Equal Protection

challenge to § 1153). 

The one point that emerges with clarity from this otherwise

bewildering maze of rules is that the question of who is an

Indian bears significant legal consequences. Importantly, from

a defendant’s perspective, unless state jurisdiction is specifically authorized by Congress, or he is charged pursuant to a

generally applicable federal criminal statute, an Indian person

charged with committing a crime against another Indian person that is not listed in § 1153 is subject only to the jurisdiction of the tribe; the offender may only be punished for up to

one year or fined $5,000, or both. 25 U.S.C. § 1302(7). Once

an Indian person is punished by a tribe for an offense covered

by § 1152, federal courts may no longer impose any punishment for that offense. Thus, Indian status carries certain benefits in the context of federal criminal adjudications. 

Indian status also bears significance independent of crimi3Offenses committed by non-Indians against multiple victims, including

both Indians and others, would fall subject to competing, and perhaps concurrent, claims of federal and state court jurisdiction. 

UNITED STATES v. BRUCE 525
nal jurisdiction. The host of federal statutes and service programs designed to benefit Indians are rife with status-based

classifications used to designate the special position of a formerly sovereign people. See Antelope, 430 U.S. at 646; FELIX

COHEN, HANDBOOK OF FEDERAL INDIAN LAW 19 (1982 ed.).

These include, to name a few, the Indian Civil Rights Act, 25

U.S.C. § 1301; the Indian Health Care Improvement Act, id.

§ 1601; the Indian Education Act, id. § 1001; the Indian Alcohol Substance Abuse Act, id. § 2403(3); and the Indian Child

Welfare Act, id. § 1901. See Morton v. Mancari, 417 U.S.

535, 552 (1974) (“Literally every piece of legislation dealing

with Indian tribes and reservations . . . single[s] out for special

treatment a constituency of tribal Indians living on or near

reservations.”). Accordingly, some commentators have even

gone so far as to characterize Indian status as a “property

interest.” See GAIL K. SHEFFIELD, THE ARBITRARY INDIAN: THE

INDIAN ARTS AND CRAFTS ACT OF 1990, at 138 (1997).

Although the requirements may vary depending upon the purpose for which Indian status is claimed, courts cannot be

ignorant of the collateral consequences their rulings might

have in future proceedings. It is against the backdrop of these

formal and functional considerations that we must discern the

precise relationship between §§ 1152 and 1153—the two

bifurcated statutory remnants of a complicated jurisdictional

history.

B. Indian Status as a Defense to § 1152

Bruce contends that, because she and her victim are both

Indians, her indictment should have been brought pursuant to

§ 1153, rather than § 1152. In order to resolve this contention,

we must first determine what effect one’s claimed Indian status has in a prosecution brought pursuant to § 1152. 

[1] In United States v. Hester, 719 F.2d 1041 (9th Cir.

1983), we held that “the Government need not allege the nonIndian status of the defendant in an indictment under section

1152, nor does it have the burden of going forward on that

526 UNITED STATES v. BRUCE
issue.” Id. at 1043. Rather, “[o]nce the defendant properly

raises the issue of his Indian status, then the ultimate burden

of proof remains . . . upon the Government.” Id. (citing United

States v. Guess, 629 F.2d 573, 577 n.4 (9th Cir. 1980)). Section 1152 thus requires that Bruce not only raise her Indian

status but also that she carry the burden of production for that

issue; Indian status, after Hester, is in the nature of an affirmative defense. To satisfy her burden, Bruce must come forward with enough evidence of her Indian status to permit a

fact-finder to decide the issue in her favor. No court has yet

specified the quantum of evidence that must be offered in

order to satisfy this production burden. Nonetheless, once she

meets this burden, the government retains the ultimate burden

of persuasion—or “the obligation to persuade the trier of fact

of the truth of [the] proposition,” Dir., Office of Workers’

Comp. Programs, Dep’t of Labor v. Greenwich Collieries,

512 U.S. 267, 268 (1994)—that the exception she claims is

inapplicable. See Martin v. Ohio, 480 U.S. 228, 237 (1987)

(Powell, J., dissenting) (noting that “when an affirmative

defense does negate an element of the crime . . . the state

[must] prove the nonexistence of the defense beyond a reasonable doubt”) (emphasis in original) (citing In re Winship,

397 U.S. 358 (1970)); Patterson v. New York, 432 U.S. 197,

207-09 & nn. 10-11 (1977) (noting that “the trend over the

years appears to have been to require the prosecution to disprove affirmative defenses beyond a reasonable doubt”);

Guess, 629 F.2d at 577 n.4 (explaining the general rule that

“once a criminal defendant satisfies his burden of production

with respect to an affirmative defense, the prosecution must

prove the inapplicability of this defense beyond a reasonable

doubt”). 

Bruce argues that the district court erred by refusing to submit the issue of her Indian status to the jury because she presented enough evidence to meet her burden of production.

The government responds that Bruce did not meet her burden,

or alternately, that, assuming Bruce is Indian, the prosecution

UNITED STATES v. BRUCE 527
under § 1152 was harmless because her conduct was equally

illegal under § 1153. 

C. Determining Who Is an “Indian”

[2] The term “Indian” is not statutorily defined, but courts

have “judicially explicated” its meaning. Broncheau, 597 F.2d

at 1263. The generally accepted test for Indian status considers “ ‘(1) the degree of Indian blood; and (2) tribal or government recognition as an Indian.’ ” United States v. Keys, 103

F.3d 758, 761 (9th Cir. 1996) (quoting Broncheau, 597 F.2d

at 1263); see also United States v. Rogers, 45 U.S. (4 How.)

567, 573 (1846) (interpreting the meaning of “Indian” under

the Trade and Intercourse Act of 1834, the precursor of the

Major Crimes Act, not to apply to a white man who had been

adopted into the Cherokee tribe).4 A person claiming Indian

status must satisfy both prongs. The first prong requires

ancestry living in America before the Europeans arrived, but

this fact is obviously rarely provable as such. See CANBY,

supra, at 9. Because the general requirement is only of

“some” blood, evidence of a parent, grandparent, or greatgrandparent who is clearly identified as an Indian is generally

sufficient to satisfy this prong. Id.; see also Vezina v. United

States, 245 F. 411 (8th Cir. 1917) (women 1/4 to 3/8 Chippewa Indian held to be Indian); Sully v. United States, 195 F.

113 (8th Cir. 1912) (1/8 Indian blood held sufficient to be

Indian); St. Cloud v. United States, 702 F. Supp. 1456, 1460

(D.S.D. 1988) (15/32 of Yankton Sioux blood sufficient to

satisfy the first requirement of having a degree of Indian

blood); Goforth v. State, 644 P.2d 114, 116 (Okla. Crim. App.

1982) (requirement of Indian blood satisfied by testimony that

4The Indian Civil Rights Act does not define “Indian” but begs the

question by defining an Indian as “any person who would be subject to the

jurisdiction of the United States as an Indian under section 1153, title 18,

[United States Code] if that person were to commit an offense listed in

that section in Indian country to which that section applies.” 25 U.S.C.

§ 1301(4) (2004). 

528 UNITED STATES v. BRUCE
person was slightly less than one-quarter Cherokee Indian);

Makah Indian Tribe v. Clallam County, 440 P.2d 442 (Wash.

1968) (1/4 Makah blood sufficient to satisfy Indian blood

requirement). 

[3] The second prong of the test—tribal or federal government recognition as an Indian—“probes whether the Native

American has a sufficient non-racial link to a formerly sovereign people.” St. Cloud, 702 F. Supp. at 1461. When analyzing this prong, courts have considered, 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.” United States v. Lawrence, 51 F.3d 150,

152 (8th Cir. 1995) (citing St. Cloud, 702 F. Supp. at 1461).

Bruce presented evidence to establish both her Indian blood

and recognition. With respect to Indian blood, she offered evidence that she is one-eighth Chippewa Indian and introduced

a certificate of Indian blood confirming this fact. She also

offered evidence that her mother is an enrolled member of the

Turtle Mountain Tribe of Oklahoma, and that two of Bruce’s

children are enrolled members of an Indian tribe.5 With

respect to recognition, she presented evidence that she was

born on an Indian reservation and currently lives on one; that

she participates in Indian religious ceremonies; that she has,

on several occasions, been treated at Indian hospitals; and that

she was “arrested tribal” all her life. 

The district court, applying the two-part test for determining Indian status, concluded that Bruce had provided evidence

to establish the first prong, her Indian blood. Her status, therefore, turned on whether a tribe or the federal government had

5The presentence report, perhaps accepting her vouching uncritically,

listed her race as “American Indian.” 

UNITED STATES v. BRUCE 529
recognized her as an Indian. The district court cited the fact

that she was not enrolled in a tribe and failed to present evidence that the federal government had recognized her to be an

Indian. On the basis of this evidence, it found that Bruce had

not met her burden on this prong and concluded that she had

not satisfied her burden of production as to the affirmative

defense. 

[4] We disagree. Tribal enrollment is “the common evidentiary means of establishing Indian status, but it is not the only

means nor is it necessarily determinative.” Broncheau, 597

F.2d at 1263; accord Antelope, 430 U.S. at 646 n.7

(“[E]nrollment in an official tribe has not been held to be an

absolute requirement for federal jurisdiction . . . .”) (citations

omitted); Keys, 103 F.3d at 761 (“While tribal enrollment is

one means of establishing status as an ‘Indian’ under 18

U.S.C. § 1152, it is not the sole means of proving such status.”) (citation omitted); Ex parte Pero, 99 F.2d 28, 31 (7th

Cir. 1938) (“The lack of enrollment . . . is not determinative

of status. . . . [T]he refusal of the Department of Interior to

enroll a certain Indian as a member of a certain tribe is not

necessarily an administrative determination that the person is

not an Indian.”); St. Cloud, 702 F. Supp. at 1461 (“[A] person

may still be an Indian though not enrolled with a recognized

tribe.”). Nor have we required evidence of federal recognition. Rather, we have emphasized that there must be some

evidence of government or tribal recognition. See Keys, 103

F.3d at 761 (concluding that where child was shown to have

Indian blood and was treated by tribe as a member of the

tribe, district court properly found that she was an Indian);

accord Ex parte Pero, 99 F.2d at 31; Lewis v. State, 55 P.3d

875, 878 (Idaho Ct. App. 2001). This stems from the recognition that one of an Indian tribe’s most basic powers is the

authority to determine questions of its own membership. See

Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978);

United States v. Wheeler, 435 U.S. 313, 322 n.18 (1978);

Cherokee Intermarriage Cases, 203 U.S. 76 (1906); Roff v.

Burney, 168 U.S. 218 (1897). 

530 UNITED STATES v. BRUCE
Motivated in part by equal protection concerns, the dissent

proposes a new test for determining Indian status; one that

would conflate our two-pronged Rogers inquiry and multifaceted “recognition” guidelines into a single question:

whether the individual is enrolled or eligible for enrollment in

a federally recognized tribe. From a purely conceptual standpoint, we agree that eligibility for enrollment provides a simpler framework within which we might judge Indian status as

a political affiliation with a formerly sovereign people. Nonetheless, it is not the test that we have adopted, and until either

Congress acts or the Supreme Court or an en banc panel of

our court revises the “recognition” prong of the Rogers test,

we are bound by our prior jurisprudence. In particular, we are

bound by the body of case law which holds that enrollment,

and, indeed, even eligibility therefor, is not dispositive of

Indian status. Broncheau, 597 F.2d at 1263; Keys, 103 F.3d

at 761. In sum, we are not permitted to hold that these cases

do not mean what they say.6

6We note, in addition, that unenrolled Indians are eligible for a wide

range of federal benefits directed to persons recognized by the Secretary

of Interior as Indians without statutory reference to enrollment. For example, The Native American Programs Act of 1974, creating the Administration for Native Americans, operates under regulations with a very broad

definition of Indian: “any individual who claims to be an Indian and who

is regarded as such by the Indian community in which he or she lives or

by the Indian community of which he or she claims to be a part.” 45

C.F.R. § 1336.1 (1989); see also Indian Health Care Improvement Act of

1976, 25 U.S.C. § 1603(c) (member of a tribe including those terminated

and those recognized in the future; descendent in first or second degree of

a member; and anyone “determined to be an Indian under regulations promulgated by the Secretary”); Indian Arts and Crafts Act of 1990, 18

U.S.C. § 1159(c)(1) (1994), 25 U.S.C. § 305e(d)(2) (1994) (defining “Indian” as “any individual who is a member of an Indian tribe; or for the

purposes of this section is certified as an Indian artisan by an Indian

tribe”) (emphasis added); ROBERT N. CLINTON, ET AL., AMERICAN INDIAN

LAW: CASES AND MATERIALS 84 (3d ed. 1991) (“Beginning with the NonIntercourse Acts of the late 1700s and through enactment of the 1934

Indian Reorganization Act, federal law has treated ‘Indians’ as a class

without regard to proof of tribal enrollment”). 

UNITED STATES v. BRUCE 531
Consequently, we find United States v. Keys, 103 F.3d 758,

particularly instructive. Keys, a non-Indian, was charged

under § 1152 with assault of his daughter, who possessed onefourth Indian blood. Keys argued that the government had

failed to prove that his daughter, who was not enrolled, was

an Indian (presumably on the theory that after McBratney,

104 U.S. at 624, assault committed by a non-Indian against a

non-Indian victim could be charged under state law, but not

under § 1152). The magistrate found that the tribal court had

exercised jurisdiction over Keys’s daughter, and that she had

been provided medical services by an Indian hospital. The

magistrate concluded “beyond a reasonable doubt” that, under

such circumstances, she was a “de facto member” of the tribe.

Id. at 760. Without considering whether she was eligible for

enrollment, we concluded that her Indian status was “amply

demonstrated.” Id. at 761.7

[5] Because of the procedural posture of the case with

which we are presented, we are not required to decide

whether Bruce conclusively established that she was an

Indian. Rather, we must merely determine whether she

brought forward enough evidence of tribal recognition to permit her defense to be heard by the jury. We conclude that she

did. 

[6] Bruce produced evidence that she had participated in

sacred tribal rituals, including at least one sweat lodge ritual;

7

See also United States v. Dodge, 538 F.2d 770, 787 (8th Cir. 1976)

(concluding that defendant, Manuel M. Alvarado, was an Indian for purposes of § 1153, based merely on evidence that he possessed one-fourth

Yurok Indian blood and, at one time, he filed an application to be recognized as a member of the Yurok Tribe on the California State Judgment

Rolls; the court stated: Alvarado possessed “Indian blood and [ ] held

[himself] out to be [an] Indian[ ]”); St. Cloud, 702 F. Supp. at 1460 (concluding that because the defendant resided on a reservation, benefitted

from tribal programs, and was socially recognized as an Indian, he met the

Rogers test for Indian status, notwithstanding the fact that he was no longer enrolled or eligible for enrollment in any federally recognized tribe).

532 UNITED STATES v. BRUCE
that she was born on an Indian Reservation and continues to

reside on one; that two of her children are enrolled members

of an Indian tribe; and that she has been treated by Poplar

Indian Health Services and the Spotted Bull Treatment Center. More significantly, her mother testified that whenever she

was arrested it “had to have been [by] a tribal person” and that

she has been arrested by tribal authorities “all her life.” The

precise testimony was as follows: 

Q. When Violet was young, did she have issues or

problems with the tribal authorities? 

A. Not really. But she was arrested tribal all her

life. 

Q. Well, that’s what I want to talk about. What

does that mean that she was “arrested tribal”? 

A. She got out of hand and someone had to come

and get her, arrest her. And it had to have been a

tribal person. 

Q. And that would be drinking behavior and such?

A. Yeah. Fighting with her sister. 

Q. Now, the tribal authorities would step in and

take charge of the situation? 

A. Yes. 

Q. And did that involve dealing with the tribal

authorities? 

A. Yes. 

Q. And was Violet treated as an Indian person

during those times? 

UNITED STATES v. BRUCE 533
A. Yes. 

Q. By the tribe? 

A. Yes.8

This testimony is significant because, as we have discussed,

the tribe has no jurisdiction to punish anyone but an Indian.

25 U.S.C. § 1302(7); Oliphant, 435 U.S. at 191. 

[7] In sum, Bruce brought forward testimony to establish

that she was “arrested tribal” her entire life and that whenever

she had a brush with the law it had to be with tribal authorities. Although not introduced as artfully by her counsel as it

could have been, Bruce has put the question of tribal criminal

jurisdiction on the table, and, in so doing, raised strong evidence of tribal recognition. The assumption and exercise of a

tribe’s criminal jurisdiction, while not conclusive evidence of

Indian status, significantly bolsters the argument that Bruce

met her burden of producing sufficient evidence upon which

a jury might rationally conclude that she was an Indian. 

We caution that Bruce was only required to meet a production burden. When combined with the testimony as to her

one-eighth Chippewa blood line, the cumulative effect of the

8While we decline to rest our decision on information contained in the

presentence investigation report, we note that the report corroborates her

mother’s testimony by listing two adult convictions in the Fort Peck Tribal

Court for disorderly conduct. Additionally, a reply brief filed in support

of her Rule 34 Motion to Arrest the Judgment charged that the government

“failed [its obligations under Brady v. Maryland] to disclose during the

discovery process that the defendant had been adjudicated in the Fort Peck

Tribal Court as an Indian.” 373 U.S. 83 (1963). Indeed, the record reflects

that the government’s case agent and BIA investigator was the Tribal

Court judge who adjudicated Bruce as an Indian. This very same investigator sat with counsel for the government during the entire trial, quietly

watching Bruce attempt to bring forward evidence of her tribal recognition, without disclosing that the defendant had been twice treated as an

Indian in an Indian Tribal Court. 

534 UNITED STATES v. BRUCE
additional evidence of tribal recognition does at least that. To

decline to find sufficient evidence of Indian status on these

facts is to shift the burden to the defense. Bruce’s burden is

one of mere production. 

[8] Accordingly, we hold that Bruce brought forward sufficient evidence that, if believed, would permit a jury rationally

to conclude that Bruce was Indian.9

D. Harmless Error

[9] Having determined that the court erred in declining to

submit the issue of Bruce’s Indian status to the jury, we must

now determine whether that error was harmless. See FED. R.

CRIM. P. 52(a) (“Any error . . . that does not affect substantial

rights must be disregarded.”). The government argues that it

makes no difference whether a jury could have concluded that

Bruce was Indian because that would only mean that her conduct violated § 1153, rather than § 1152. Effectively, the government argues that because her victim was an Indian, her

crime must be chargeable under either § 1152 or § 1153, and

Bruce’s Indian status is therefore irrelevant. Although the

government’s argument finds some support in the cases examining this issue, we find these cases distinguishable and the

argument unpersuasive. 

In Henry v. United States, 432 F.2d 114 (9th Cir. 1970),

modified, 434 F.2d 1283 (9th Cir. 1971), we concluded that

when an indictment charged a violation of § 1152 but the government actually prosecuted the case under § 1153, the error

was harmless. In Henry, the indictment listed § 1152 but

9Bruce also presented evidence in a post-trial motion for arrest of judgment brought pursuant to FED. R. CRIM. P. 34 that she was adjudicated as

an Indian child by a tribal court exercising jurisdiction pursuant to the

Indian Child Welfare Act, 25 U.S.C. § 1901 (2004). Because we conclude

that the evidence Bruce introduced at trial was sufficient to meet her burden of production, we need not decide whether the additional evidence

that Bruce presented in her post-trial motions merits consideration. 

UNITED STATES v. BRUCE 535
alleged that the defendant was Indian. See Henry, 432 F.2d at

117-18. The court instructed the jury that the defendant’s

Indian status was an element of the offense, and the jury

found that the government had proven that the defendant was

Indian beyond a reasonable doubt. See id. Although the

indictment read § 1152, the defendant was in all other

respects prosecuted under § 1153, and not § 1152. Thus,

Henry dealt with little more than a scrivener’s error. 

In United States v. Heath, 509 F.2d 16 (9th Cir. 1974), we

concluded that an indictment under § 1153, alleging that both

the victim and the defendant were Indian, was sufficient to

support a conviction under § 1152. The facts in Heath were

quite unusual. Heath had initially stipulated that she was an

Indian (which would have subjected her to § 1153); however,

on appeal she argued that, by act of Congress, the Klamath

tribe was dissolved, and she was no longer entitled to claim

Indian status at the time of her offense. See 25 U.S.C. § 564q

(2004). We agreed that she was no longer an Indian, but held

that the error in the indictment was harmless beyond a reasonable doubt. Id. at 20. In reaching this conclusion, considerable

emphasis was placed on Heath’s pre-trial stipulation that she

was an Indian, id. at 20 n.4, as well as the indictment’s proper

reference to the victim’s Indian status, which, given the termination of Heath’s Indian status, was a pre-requisite for her

conviction under § 1152. Id. at 20. Moreover, as Heath clearly

implies, a denial of Indian status operates as a jurisdictional

element under § 1153, which is generally resolved by a judge,

rather than an affirmative defense, which must be submitted

to the jury after the defendant carries his production burden.10

Importantly, however, in neither Henry nor Heath was the

question of Indian status contested at trial. 

10In addition, we note that harmless error analysis may find greater justification when the prosecution has already met the more difficult task of

proving guilt beyond a reasonable doubt under § 1153, which requires

proof of Indian status, rather than choosing to indict under § 1152, which

effectively shifts the burden and cost of producing evidence of Indian status to the defendant. 

536 UNITED STATES v. BRUCE
While other circuits have reached the same conclusion

under similar circumstances, only one case involved an objection timely filed. In United States v. White Horse, 316 F.3d

769 (8th Cir. 2003), the Eighth Circuit held that a charge

brought under § 1152 rather than § 1153 was not plainly erroneous because “[b]etween them, the statutes apply to all

defendants whatever their race or ethnicity.” Id. at 772-73; see

also id. at 772 (noting that objection was not raised at trial).

The Tenth Circuit in Prentiss, 256 F.3d 971, concluded that,

although the Indian/non-Indian status of the victim and defendant are essential elements of § 1152 crimes which must be

alleged in the indictment, the failure of the indictment to

allege those elements was harmless error. See also id. at 983

(reasoning that the indictment should be construed liberally

because the defendant’s challenge was belated). In United

States v. John, 587 F.2d 683, 688 (5th Cir. 1979), the Fifth

Circuit, without commenting on the timeliness of the motion,

concluded that an indictment’s erroneous reliance on § 1153,

rather than § 1152, was harmless where the applicable federal

enclave law was also referenced such that it was “clear that

the indictment asserted jurisdiction under § 1152 as an

unstated premise.” 

Close examination demonstrates that none of these cases

involves a timely challenge to a prosecution both instituted

and actually conducted pursuant to the wrong statute. Yet,

their reasoning is alluring because Bruce—who does not dispute that she committed the underlying act of choking her

child—is guilty under either § 1152 or § 1153; either she is an

Indian or she is not. See White Horse, 316 F.3d at 773. Given

all of the evidence offered at trial, the conclusion that the district court reached the “correct result” despite its error seems

almost inescapable. See, e.g., United States v. Rubenstein, 151

F.2d 915, 920 (2d Cir. 1945) (Frank, J., dissenting) (famously

characterizing this approach to harmless error review as follows: “If we, sitting on a reviewing court, believe, from

merely reading the record, that a defendant is guilty, then we

. . . hold that an error . . . even if it may seriously have prejuUNITED STATES v. BRUCE 537
diced the jury against the defendant, is to be regarded as

‘harmless.’ ”). 

Nonetheless, this logic belies harmless error scrutiny. In

reviewing nonconstitutional error on direct appeal under Rule

52(a), we adhere to the analysis first provided by the Supreme

Court in Kotteakos v. United States, 328 U.S. 750 (1946); see

also Brecht v. Abramson, 507 U.S. 619, 637-38 (1993) (reaffirming the Kotteakos standard); United States v. Brooke, 4

F.3d 1480, 1488 (9th Cir. 1993) (stating that the standard for

nonconstitutional error on direct review is governed by Kotteakos). In rejecting the premise underlying the “correct

result” approach—namely, that a defendant has not been

harmed by error if he should have been convicted in any event

—Kotteakos reaffirmed a touchstone principle of appellate

review: “[I]t is not the appellate court’s function to determine

guilt or innocence. Nor is it to speculate upon probable reconviction and decide according to how the speculation comes

out. . . . Those judgments are exclusively for the jury.” Kotteakos, 328 U.S. at 763 (citations omitted). Instead, Kotteakos

offered the following standard: 

If, when all is said and done, the conviction is sure

that the error did not influence the jury, or had but

very slight effect, the verdict and the judgment

should stand . . . . But if one cannot say, with fair

assurance, after pondering all that happened without

stripping the erroneous action from the whole, that

the judgment was not substantially swayed by the

error, it is impossible to conclude that substantial

rights were not affected. 

Id. at 764-65. The Court emphasized that whether “conviction

would, or might probably, have resulted in properly conducted trial is not the criterion”; rather, we are merely to

inquire whether “the error had substantial and injurious effect

or influence in determining the jury’s verdict.” Id. at 776

(emphasis added). 

538 UNITED STATES v. BRUCE
[10] Using this framework, it is clear that our answer to the

question of what would have happened without the error

should not be based on our own satisfaction with the verdict,

or even whether the evidence was sufficient for the jury to

have reached the same verdict absent the error. The issue,

rather, is what the jury actually would have done without the

error. See WAYNE R. LAFAVE, JEROLD H. ISRAEL & NANCY J.

KING, CRIMINAL PROCEDURE § 27.6(b) (2d ed. 1999). It is

against this backdrop that we judge the harm caused to Bruce

by the trial court’s erroneous decision to prevent Bruce from

reaching the jury on the question of her Indian status. 

[11] We note that Congress has set forth, in §§ 1152 and

1153, two different mechanisms for asserting federal criminal

jurisdiction. We have previously concluded that the 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. See United States v. James,

980 F.2d 1314, 1317-19 (9th Cir. 1992) (concluding that

where the defendant challenges the indictment before trial, the

failure to allege Indian status is fatal to an indictment under

§ 1153); Broncheau, 597 F.2d at 1262 (implying that the

defendant’s Indian status is one of the “necessary elements”

to be proven by the government in a § 1153 prosecution). Our

conclusion that Bruce met her burden of production under

§ 1152 implies a finding that the jury could rationally acquit

on the basis that the government failed to disprove her

claimed Indian status. This does not equate to a finding that

the government has proven beyond a reasonable doubt that

Bruce is Indian, as required by § 1153. By prosecuting Bruce

under § 1152, rather than § 1153, the government did not

have to prove that Bruce was an Indian. In so doing, the government released itself of its obligation to prove an element

of the offense beyond a reasonable doubt. The trial court’s

error was, thus, not anymore harmless than a failure to prove

that the victim was indeed a child under the age of 16. Absent

proof of Bruce’s Indian status, there is no federal crime under

§ 1153. 

UNITED STATES v. BRUCE 539
Moreover, were we to find harmless error in this case—

where the defendant has objected from the outset that she

could not be charged under § 1152—we would have merged

the two statutes into one. We would be inviting the government to charge under either statute, calculating that one of the

provisions is likely to apply. This is not without consequences. Because § 1152 requires proof of fewer elements,

the government would always have an incentive to indict

under that section, thereby shifting the costs of producing evidence of Indian status to the defendant. 

[12] Furthermore, as we have discussed, Bruce’s status as

an Indian vel non has consequences for any future prosecutions, and may also have collateral consequences in future

non-criminal hearings where Indian status is at issue. To offer

a single example, prior tribal punishment, as noted previously,

is an affirmative defense to a prosecution instituted pursuant

to § 1152. See 18 U.S.C. § 1152 (stating that “[t]his section

shall not extend to . . . any Indian committing any offense in

the Indian country who has been punished by the local law of

the tribe . . .”). Were we to find harmless error in this case,

it is not clear on what basis this affirmative defense could

ever be raised in a prosecution brought against an Indian person under § 1152, so long as the crime could have been

charged under § 1153. In sum, we simply cannot conclude,

based upon the record, that the district court’s error did not

have a prejudicial effect on the outcome of the proceeding.

See Kotteakos, 328 U.S. at 776. 

We note, however, that this statutory framework creates an

obvious and troubling conundrum. It is entirely probable that

the government may be simultaneously unable either to prove

or disprove a claim of Indian status, effectively foreclosing

conviction under either statute. This is especially likely given

that the burden of proof required for a defendant to place

Indian status at issue in a § 1152 case may be as low as a preponderance, whereas the burden of proof required for the government to both disprove Indian status under § 1152 and to

540 UNITED STATES v. BRUCE
prove Indian status under § 1153 is proof beyond a reasonable

doubt. We are also aware of the additional expenditure of

government resources required to reindict Bruce under a different provision and to retry her with the same evidence, but

we decline to challenge the government’s charging decision.

See Prentiss, 256 F.3d at 986 n.14. Judicial correction of

indictments that erroneously misrepresent a defendant’s

Indian status presents the possibility of future adverse collateral consequences outside the criminal context, and improperly shifts the burden of proof otherwise applicable to the

parties within the criminal arena. 

In addition, where indictment is required, judicial correction of this sort serves to usurp the uniquely protective role of

the grand jury.11 The Fifth Amendment vests the grand jury

with responsibility for determining “whether there is probable

cause to believe a crime has been committed and [for] . . .

protect[ing] . . . citizens against unfounded criminal prosecutions.” United States v. Calandra, 414 U.S. 338, 343 (1974).

The grand jury is part of the prosecutorial process, Butz v.

Economou, 438 U.S. 478, 510 (1978), and we may not direct

its activities. See United States v. Dionisio, 410 U.S. 1, 17

11While the Fifth Amendment requires presentment or indictment by a

grand jury in felony cases, assault on a child under the age of sixteen, the

crime for which Bruce is charged, is a Class A misdemeanor punishable

by one year’s imprisonment and/or a $100,000 fine, and, thus, does not

implicate this concern. We note, however, that of the remaining 13 crimes

enumerated in § 1153, at least 10 require indictment by a grand jury unless

waiver is obtained. Where indictment is required, the concern for avoiding

judicial usurpation by retroactively modifying indictments to conform to

the evidence established at trial is directly implicated. 

In the present case, although Bruce did not have to be indicted by a

grand jury, the government nonetheless opted to proceed by grand jury

indictment. While the prosecution’s choice to indict—because it was

merely optional—does not trigger our concern for safeguarding the protective role of the grand jury, it does demonstrate that the error in the indictment was easily correctable. Once her Indian status was established, Bruce

could have been recharged by Bill of Information, without undue burden

on the prosecution. 

UNITED STATES v. BRUCE 541
(1973). Accordingly, we may not presume to correct the decisions of the grand jury by altering the sections charged under

the United States Code, except through our judgments, any

more than we can, except through our judgments, correct the

prosecutorial decisions of the executive. See United States v.

Williams, 504 U.S. 36, 47-50 (1992); United States v. Nixon,

418 U.S. 683, 693 (1974); Confiscation Cases, 74 U.S. (7

Wall.) 454, 457 (1868). 

While we are not ignorant of the troublesome nature of our

judgment, we remain bound by the language and structure of

these two statutes. The federal crimes at issue here “are solely

creatures of statute,” Staples v. United States, 511 U.S. 600,

604 (1994). Subject to constitutional limitations not implicated here, Congress—not a federal appellate court—is authorized to define the elements of a federal criminal offense.

Whalen v. United States, 445 U.S. 684, 689 & n.3 (1980). It

is likewise up to Congress to correct any awkwardness in the

interrelation of the acts it promulgates. 

[13] Accordingly, the judgment of the district court is

REVERSED, and the case is REMANDED to the district

court for proceedings consistent with this decision. 

RYMER, Circuit Judge, dissenting: 

I part company because until now, no one has ever held that

an adult may be an Indian (for purposes of legal status, not for

purposes of ethnicity) when she is neither enrolled as a member of a tribe nor eligible for membership, nor entitled to

tribal or government benefits to which only Indians are entitled; our law does not require us to allow Bruce to put her

legal status as an Indian into play — and thus to shift the burden to the government to prove beyond a reasonable doubt

that she is not an Indian — in the absence of any evidence

that she is at least eligible for tribal membership or recogni542 UNITED STATES v. BRUCE
tion; and it makes no sense to do so, for the majority’s contrary rule allows Bruce, on the same set of facts, to be both

an Indian (who cannot be prosecuted under 18 U.S.C. § 1152)

and not an Indian (who cannot be prosecuted under 18 U.S.C.

§ 1153). 

The facts are undisputed. The evidence shows that: 

• Bruce’s mother, who is enrolled in the Turtle

Mountain Tribe, is Indian

• Bruce is one-eighth Chippewa 

• Bruce currently lives on the reservation of the

Fort Peck Tribe

• Bruce associates with Indian persons 

• Bruce has three children, two of whom are Indian

and are enrolled in a tribe 

• Bruce engaged in one sweat lodge (a ceremony

that has religious significance)

• Bruce was “arrested tribal all her life”

1

1This is the only evidence in the record about Bruce’s involvement with

tribal authorities. Bruce (quite properly) does not rely on anything else.

While the majority disclaims reliance on two arrests reported in the Presentence Investigation Report, it nevertheless uses these incidents (both

for disorderly conduct for which the disposition was “forfeit bail”) and an

argument made in a reply brief to bolster its position. Of course, neither

was in evidence before the district court when it found that Bruce had not

met her burden of production on the affirmative defense of her Indian status, and should not be considered for any purpose on appeal. Even so,

these offenses show nothing pertinent because, for all we know, they are

not even Bruce’s and we have no way of knowing whether tribal jurisdiction was contested or conceded. 

UNITED STATES v. BRUCE 543
There is no evidence: 

• that Bruce is an enrolled member of any tribe 

• that Bruce is recognized as a tribe member by

any tribe or the federal government 

• that Bruce enjoys any benefits of tribal affiliation

• that Bruce is eligible for tribal membership 

• that Bruce has voted in tribal elections, that she

has held tribal office, that she has served on tribal

juries, that she has received payments or allotments made only to Indians, or that she is

employed by a tribal organization. 

I agree with the district court that, as a matter of law, this evidence does not permit a jury to find that Bruce has legal status

as an Indian. 

The Federal Enclave Act, 18 U.S.C. § 1152, provides for

the prosecution of crimes committed in Indian country by

non-Indians against Indians, but its coverage does not extend

to offenses committed by one Indian against the person or

property of another Indian; § 1153, in turn, provides that an

Indian who commits certain major crimes against the person

or property of another Indian may be prosecuted under the

general laws of the United States. Neither section defines “Indian.” However, courts generally follow the Rogers test,2

which considers “(1) the degree of Indian blood; and (2) tribal

or government recognition as an Indian.” United States v.

Keys, 103 F.3d 758, 761 (9th Cir. 1996). We have held that

the defendant’s legal status as a non-Indian is not an element

or an essential jurisdictional fact that must be charged in an

indictment under § 1152. United States v. Hester, 719 F.2d

2United States v. Rogers, 45 U.S. 567 (1846). 

544 UNITED STATES v. BRUCE
1041, 1043 (9th Cir. 1983). Rather, as we explained in adopting the burden-shifting framework that controls § 1152 prosecutions and this case,

[i]t is far more manageable for the defendant to

shoulder the burden of producing evidence that he is

a member of a federally recognized tribe than it is

for the Government to produce evidence that he is

not a member of any one of the hundreds of such

tribes. We accordingly hold that the Government

need not allege the non-Indian status of the defendant in an indictment under section 1152, nor does

it have the burden of going forward on that issue.

Once the defendant properly raises the issue of his

Indian status, then the ultimate burden of proof

remains, of course, upon the Government. 

Id. at 1043 (emphasis added). 

While we have stated in different contexts that enrollment

is not the exclusive way to show that one is Indian,3 we have

3

See Keys, 103 F.3d at 761 (stating that lack of enrollment of two-year

old who had been treated as member of the tribe by the tribe and her parents does not control determination of her Indian status); United States v.

Broncheau, 597 F.2d 1260, 1263 (9th Cir. 1979) (upholding § 1153 indictment that charged defendant as an Indian against challenge that it was

deficient for failing also to charge that he was enrolled as enrollment is not

an “absolute requirement,” nor necessarily determinative, when the indictment adequately put the defendant on notice of his classification as an

Indian); Robert N. Clinton, Criminal Jurisdiction Over Indian Lands: A

Journey Through a Jurisdictional Maze, 18 Ariz. L. Rev. 503, 516 (1976).

The Eighth Circuit, which considers the determination of Indian or nonIndian status a conclusion of law, has broken the test into four factors

which are, in declining order of importance: “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.” United States v. Lawrence, 51 F.3d

150, 152 (8th Cir. 1995); see also United States v. Torres, 733 F.2d 449,

456 (7th Cir. 1984) (approving consideration of whether a person is recognized as an Indian by an Indian tribe, or by the federal government, and

whether a person resides on an Indian reservation and holds himself out

as an Indian). 

UNITED STATES v. BRUCE 545
recognized that tribal membership is the common thread and

evidentiary means of establishing Indian status. See Broncheau, 597 F.2d at 1263 (observing this, and noting that the

defendant admitted he was enrolled and never suggested he

did not understand the term “Indian” as it applied to him). So

far as I can tell, no court has ever held that an adult could

have Indian legal status who was neither enrolled or eligible

for enrollment, nor entitled to tribal or government benefits

due only to Indians.4 Indeed, enrollment — or at a minimum,

4

See, e.g., United States v. Antelope, 430 U.S. 641 (1977) (noting that

because § 1153 does not apply to many individuals who are racially to be

classified as Indians, the government offered proof that the defendants are

enrolled members of the Coeur d’Alene Tribe and thus not emancipated

from tribal relations; declining to reach question whether nonenrolled

Indians may ever be subject to § 1153); Lawrence, 51 F.3d at 152-54

(holding that alleged victim was non-Indian given that she was not an

enrolled member of the Oglala Sioux Tribe or any other tribe and wasn’t

eligible for enrollment because she had not completed the requirements for

tribal enrollment; the medical services she had received from the Indian

Health Service were not in her own right; the fact that the Oglala Sioux

Tribe had taken custody and placed the victim under the care of her grandmother (an enrolled member) was too insignificant an involvement to

show tribal recognition as the victim was not enrolled or eligible for

enrollment; and she did not attend pow-wows, Indian dances or other

Indian cultural events and lived off-reservation except for a brief period

before she was abused); United States v. James, 980 F.2d 1314, 1319 (9th

Cir. 1992) (holding that facts conclusively proved that the defendant and

victim were enrolled Indians within the meaning of § 1153); United States

v. Dodge, 538 F.2d 770, 786-87 (8th Cir. 1976) (holding that evidence of

having filed an application for enrollment in the Yurok Tribe and previous

entry on the Pawnee tribal roll, and the fact that defendants had held themselves out to be Indians within the meaning of § 1153, established Indian

status under § 1153); United States v. Heath, 509 F.2d 16, 19 (9th Cir.

1974) (refusing to uphold federal jurisdiction over an individual who was

anthropologically a Klamath Indian after the Termination Act ended his

tribal affiliation); United States v. Ives, 504 F.2d 935, 953 (9th Cir. 1974)

(stating, in dicta, that enrollment or lack of it is not determinative of status

as an Indian; the defendant had asked that his name be removed from the

rolls of the Colville Tribe but it was not done); Ex parte Pero, 99 F.2d 28,

30-32 (7th Cir. 1938) (holding on habeas review of a state court conviction that petitioner was Indian even though the enrolling agent for the Bad

River Reservation had refused to enroll him because he belonged to the

546 UNITED STATES v. BRUCE
eligibility for enrollment — may be constitutionally required

to avoid equal protection problems because otherwise,

enforcement of federal criminal laws would arguably be based

on an impermissible racial classification. See Antelope, 430

U.S. at 646 (holding that there was no constitutional problem

because defendants were not subjected to federal criminal

jurisdiction under § 1153 on account of their Indian race, but

because they are enrolled members of the Coeur d’Alene

Tribe); Keys, 103 F.3d at 761 (noting that Antelope had

upheld prosecution on equal protection grounds because “the

term ‘Indian’ describes a political group or membership, not

a racial group”). 

It is difficult to fathom what the “recognition” prong of

Rogers means if not enrollment or eligibility for enrollment in

a tribe, or receipt of tribal or federal benefits to which only

Indians are entitled. Indian ties cannot be enough, because

one can have ties without legal status. As the Supreme Court

observed in Duro v. Reina, “[m]any non-Indians reside on

reservations, and have close ties to tribes through marriage or

Lost Band of St. Croix Chippewas — an action which didn’t show that the

petitioner was not Indian but rather, was evidence that he was — and noting that he was the child of a full-blooded Indian of the St. Croix Band

of Lake Superior Chippewas and a father who was a half-blood, had

always resided on a reservation that was set aside by treaty for the

LaPointe Band and other Indians who might settle with them, he maintained tribal relations with the Indians on the reservation and was recognized as a Chippewa Indian by other Indians); Petition of Carmen, 165 F.

Supp. 942, 948 (N.D. Cal. 1958) (finding no doubt that petitioner is an

Indian subject to the Major Crimes Act as he is an Indian by blood and

enrolled as a member of the Mono tribe), aff’d sub nom. Dickson v. Carmen, 270 F.2d 809 (9th Cir. 1959); see also Halbert v. United States, 283

U.S. 753, 762-63 (1931) (noting the general rule that the right of individual Indians to share in tribal property depends on tribal membership); Vezina v. United States, 245 F. 411 (8th Cir. 1917) (holding that person who

was by blood of the Fond du Lac band of the Chippewas of Lake Superior

who moved to the reservation, was recognized, enrolled, and secured allotments upon the reservation were members). 

UNITED STATES v. BRUCE 547
long employment. Indeed, the population of non-Indians on

reservations generally is greater than the population of all

Indians, . . .” 495 U.S. 676, 695 (1990). 

But if — as the majority holds — ties are enough for purposes of § 1152, no reason of logic, linguistics, or grammar

suggests that ties should not also be enough for purposes of

§ 1153.5 Yet clearly they are not. To the contrary, we have

held for purposes of § 1153 that a terminated Klamath Indian

is no longer an Indian because she lost her Indian legal status

upon termination. United States v. Heath, 509 F.2d 16, 19

(9th Cir. 1974); Hester, 719 F.2d at 1043 n.2 (so noting). If

that is so, then it makes no sense for an Indian who has never

had tribal membership and is ineligible for it to have legal status as an Indian. A court cannot rationally hold that both

things are true. 

United States v. Keys, 103 F.3d 758 (9th Cir. 1996), which

the majority points to as “instructive,” op. at 532, is different.

There, the question of Indian status arose with respect to a

two-year old girl who was not enrolled in the Tribe. However,

we decided that her lack of enrollment did not control the

determination of her Indian status because she could not have

enrolled herself, her mother was an enrolled member of the

Colorado River Indian Tribe, the girl had one-quarter Colorado River Indian blood, the girl’s custody was litigated in the

Colorado River Indian Tribal Court which exercised jurisdic5As we observed in United States v. Jackson, 600 F.2d 1283, 1285-86

(9th Cir. 1979): 

Section 1153 should be read in conjunction with § 1152, which

extends “the general laws of the United States as to the punishment of offenses . . . to the Indian country” with certain exceptions. . . . Thus, the general rule is that “except for the offenses

enumerated in (section 1153), all crimes committed by enrolled

Indians against other Indians within Indian country are subject to

the jurisdiction of tribal courts.” 

United States v. Antelope, 430 U.S. 641, 643 n.2 (1977). 

548 UNITED STATES v. BRUCE
tion over her and continued to do so at the time of the federal

action, and the allegations that formed the gravamen of the

federal prosecution were investigated by Colorado River

Indian police. Id. at 761. Bruce’s situation differs because she

is an adult who could have enrolled herself (if she were eligible), she has one-eighth Chippewa blood (which is not the

bloodline of the Ford Peck tribes), and she was not under the

jurisdiction of any tribal court at the time of the federal action.

In sum, the district court got the test right, correctly construed the facts in the light most favorable to Bruce, and concluded that, as a matter of law, the evidence adduced by

Bruce does not permit a reasonable inference that she has

Indian legal status. Applying the Rogers test, the district court

acknowledged evidence of some Indian blood possessed by

Bruce. This evidence shows that she is one-eighth Chippewa,

but there is no evidence that this meets the quantum of blood

requirement for recognition by that tribe. As Judge Canby

notes in his Nutshell, tribes have different blood requirements

for enrollment; many require one-fourth tribal blood, and at

least one requires five-eighths.6 William C. Canby, Jr., American Indian Law in a Nutshell 10 (4th ed. 2003). Regardless,

there is no evidence that Bruce is enrolled as a member of the

Turtle Mountain Tribe — where her mother is enrolled — or

of the Sioux or Assiniboine tribes which are the two tribes at

Ford Peck, where Bruce now lives, or of any Chippewa tribe.

There is no evidence that she is eligible for membership.

There is no evidence that Bruce holds herself out as Indian;

although she enrolled two of her three children, she has not

enrolled (or for all that appears, ever tried to enroll) herself.

6One circuit court (functioning as a trial court) found based on evidence

of custom and prior enrollment that one-eighth blood was sufficient to be

enrolled as a member of a particular tribe that the persons involved (who

were of mixed Indian blood) had chosen to identify themselves with, and

to be entitled to tribal benefits. Sully v. United States, 195 F. 113

(C.C.D.S.D. 1912). Whether or not one-eighth blood is sufficient in some

cases, there is no evidence in this case that it would suffice for purposes

of membership in, or identification with, any relevant tribe. 

UNITED STATES v. BRUCE 549
This indicates that she either knows that she cannot be a tribal

member, or does not wish to identify herself as one. There is

no evidence that she has received benefits, payments, or allotments to which only an Indian is entitled. Nor is there any

evidence that Bruce has taken part in tribal affairs by voting,

serving on juries, or holding office. There is no evidence that

Fort Peck has been involved in her life in a significant enough

way to constitute recognition; and conversely, visiting a sweat

lodge with her mother on one occasion does not manifest participation in Indian life or heritage to any substantial extent.

The only evidence of Bruce’s legal status as an Indian comes

from the fact that her mother is an enrolled member of the

Turtle Mountain Tribe, Bruce was “arrested tribal,” was married for a time to an Indian, has two enrolled children, lives

on the Fort Peck reservation (which is home to tribes with

which she has no blood relationship), and socializes with others on the reservation because of her children. This could well

be true of a lot of people, for many non-Indians live on Indian

reservations, where they too get in trouble, socialize with

Indians, marry Indians, and have children who are recognized

as Indian. These facts alone do not raise an inference that

Bruce has been recognized by any tribe or the government. 

Accordingly, the district court correctly concluded that

Bruce failed to produce sufficient evidence to support a finding that she has legal status as an Indian. I would not cut a

new path that allows someone to have the legal status of an

Indian, and not an Indian, on the same set of facts that does

not include enrollment, eligibility for enrollment, or entitlement to Indian benefits as a common denominator. I therefore

dissent. 

550 UNITED STATES v. BRUCE