FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LESLIE DAWN EAGLE,  No. 08-16786

Petitioner-Appellant, D.C. No.

v.  3:06-cv-00563-

YERINGTON PAIUTE TRIBE,

LRH-RAM

Respondent-Appellee. OPINION 

Appeal from the United States District Court

for the District of Nevada

Larry R. Hicks, District Judge, Presiding

Argued and Submitted

February 9, 2010—San Francisco, California

Filed May 7, 2010

Before: Alex Kozinski, Chief Judge, David R. Thompson

and M. Margaret McKeown, Circuit Judges.

Opinion by Judge Thompson

6797
COUNSEL

Michael K. Powell, Reno, Nevada, for the petitioner/appellant.

Mitchell C. Wright, Reno, Nevada, for the respondent/appellee.

OPINION

THOMPSON, Senior Circuit Judge:

Leslie Dawn Eagle challenges her conviction of criminal

child abuse in the tribal court for the Yerington Paiute Tribe.

Dawn Eagle contends she was denied due process because the

Tribe failed to allege and prove beyond a reasonable doubt

that she was an “Indian,” which, according to Dawn Eagle, is

a necessary element of her crime of conviction. The district

court concluded that Indian status, although a requirement for

tribal jurisdiction, was not an element of the crime and denied

Dawn Eagle’s habeas corpus petition. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm. 

EAGLE v. YERINGTON PAIUTE TRIBE 6799
I

Background

In August 2004, the Tribe filed a criminal complaint charging Dawn Eagle with child abuse under section 5-50-020 of

the Tribe’s Law and Order Code (the “Code”). In January

2005, the Tribe filed a second complaint against Dawn Eagle,

which added several criminal counts and attached a probable

cause statement alleging that Dawn Eagle was an Indian. For

procedural reasons, the Tribe prosecuted Dawn Eagle under

the original complaint only. 

Section 5-50-020 defines child abuse as the “non-accidental

physical or mental injury to a person under eighteen” in the

defendant’s care. The defendant’s status as an Indian is not an

element of this offense. 

The Code recognizes that the tribal court only has criminal

jurisdiction over Indians. Section 1-20-030 provides that the

“Tribal Court shall have criminal jurisdiction over all offenses

enumerated in this Law and Order Code . . . when committed

within the jurisdiction of the court by any Indian . . . .” Section 1-21-030 of the Code specifies that the “burden of raising

the issue of non-jurisdiction (status as a Non-Indian) shall be

upon the person claiming the exemption from jurisdiction but

the burden of proof of jurisdiction (status as an Indian)

remains with the prosecution.” 

Dawn Eagle never raised the issue of her Indian status or

the tribal court’s jurisdiction before trial or at any point prior

to the close of evidence. Instead, Dawn Eagle stated for the

first time during closing argument that she should be found

not guilty because the prosecution failed to prove that she was

an Indian. The tribal court convicted Dawn Eagle without

expressly concluding that she was an Indian. 

Dawn Eagle appealed to the Inter-Tribal Court of Appeals,

which affirmed. That court concluded that Dawn Eagle failed

6800 EAGLE v. YERINGTON PAIUTE TRIBE
to timely and adequately challenge the Tribe’s jurisdiction,

and that there was sufficient evidence at trial establishing that

Dawn Eagle was in fact an Indian.

Dawn Eagle filed a petition for a writ of habeas corpus with

the district court pursuant to 25 U.S.C. § 1303. The district

court denied the petition, concluding that Indian status was

not a necessary element of the crime of which Dawn Eagle

had been convicted. The district court concluded that the

Tribe did not have to prove beyond a reasonable doubt that

Dawn Eagle was an Indian when she raised the issue for the

first time in her closing argument. This appeal followed.

II

Tribal Jurisdiction

[1] In 1990, Congress amended the Indian Civil Rights Act

of 1968 (“ICRA”), 25 U.S.C. §§ 1301-1303, in response to

the Supreme Court’s decision in Duro v. Reina, 495 U.S. 676

(1990), which held that tribes lack inherent authority to prosecute nonmember Indians. Pub. L. 101-511, Title VIII,

§ 8077(b)-(c), 104 Stat. 1856, 1892-93 (1990). Congress

amended the definition of the tribes’ “power of selfgovernment” to “recognize[ ] and affirm[ ]” the “inherent

power of Indian tribes . . . to exercise criminal jurisdiction

over all Indians.” 25 U.S.C. § 1301(2). Coined the “Durofix,” the 1990 Amendments restored the tribes’ inherent

power to prosecute nonmember Indians for misdemeanors.

United States v. Lara, 541 U.S. 193, 199 (2004); id. at 215-16

(Thomas, J., concurring).

[2] The 1990 Amendments defined “Indian” as “any person who would be subject to the jurisdiction of the United

States as an Indian under section 1153, Title 18, 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).

Section 1153 gives the federal courts exclusive jurisdiction

EAGLE v. YERINGTON PAIUTE TRIBE 6801
over “[a]ny Indian” who commits certain crimes within Indian

country. See Oliphant v. Suquamish Indian Tribe, 435 U.S.

191, 203 (1978). It does not define “Indian,” but the Supreme

Court has concluded that for the purpose of federal jurisdiction, “Indian” does not include “many individuals who are

racially to be classified as ‘Indians.’ ” United States v. Antelope, 430 U.S. 641, 646 n.7 (1977) (quoting Morton v. Mancari, 417 U.S. 535, 553 n.24 (1974)) (Indian status is

“political rather than racial in nature”). For federal prosecutions under § 1153, a “defendant’s Indian status is an essential

element . . . which the government must allege in the indictment and prove beyond a reasonable doubt.” United States v.

Bruce, 394 F.3d 1215, 1229 (9th Cir. 2005); cf. United States

v. Cruz, 554 F.3d 840, 850-51 (9th Cir. 2009) (distinguishing

§ 1153 from § 1152, for which Indian status in an affirmative

defense).

Dawn Eagle contends that because the 1990 Amendments

to ICRA defined “Indian” by reference to § 1153, all tribal

prosecutions are subject not only to the federal definition of

“Indian,” but also to § 1153’s Indian-status pleading requirement. We disagree. There is no evidence that Congress

intended to incorporate any aspect of § 1153 other than the

definition of “Indian.”

III

Statutory Text

We start, as always, with the statutory text. The 1990

Amendments do not expressly impose § 1153’s federal pleading requirements on tribal prosecutions or otherwise make

Indian status an essential element of every tribal offense. In

arguing otherwise, Dawn Eagle over-reads the statute. 

[3] True, the statute defines “Indian” by referencing

§ 1153. See 25 U.S.C. § 1301(4). But that reference simply

“make[s] it plain that the definition of ‘Indian’ is the same as

6802 EAGLE v. YERINGTON PAIUTE TRIBE
‘Indian’ in [§ 1153],” nothing more. Means v. Navajo Nation,

432 F.3d 924, 930 (9th Cir. 2005);1see United States v.

Maggi, 598 U.S. 1073, 1077-80 (9th Cir. 2010) (discussing

the development of case law interpreting “Indian” as applied

to § 1153). It does not subject the tribes’ inherent prosecutorial authority to the federal pleading and proof requirements

of § 1153. “Rather, it enlarges the tribes’ own ‘powers of selfgovernment’ ” to prosecute all Indians for misdemeanors.

Lara, 541 U.S. at 198 (quoting 25 U.S.C. § 1301(2)).

[4] In the present case, the Tribe exercised its inherent

power of self-government to define its child abuse offense

without an Indian status element and to create a procedural

rule requiring defendants to raise the jurisdictional issue of

Indian status before the Tribe must prove it at trial. While the

Tribe only has jurisdiction over Indians, the Tribe has not

made status as an Indian an essential element of the crime,

and Congress has not required it to do so. Thus, the Tribe was

not required to plead and prove Dawn Eagle’s Indian status

beyond a reasonable doubt when Dawn Eagle did not raise the

issue. 

IV

Legislative Intent

[5] Were this not clear from the text and purpose of the

1990 Amendments, the legislative history would leave no

doubt. 

Congress understood that the “definition of ‘Indian’ for

purposes of 18 U.S.C. [§ ]1153 was used in the 1990 amendments to the Indian Civil Rights Act so that there would be

a consistent definition of ‘Indian’ in the exercise of jurisdic1Thus, in Means, we concluded that “all Indians” under ICRA meant

“all of Indian ancestry who are also Indians by political affiliation, not all

who are racially Indians.” 432 F.3d at 930. 

EAGLE v. YERINGTON PAIUTE TRIBE 6803
tion by either the Federal government or a tribal government.”

S. REP. NO. 102-168, at 6 (1991) (emphasis added). Congress

recognized that “[i]n most cases, status as an Indian for purposes of 18 U.S.C. [§ ] 1153 is an element of proof” but chose

not to incorporate this requirement. Id. at 5; see also H.R.

REP. NO. 102-61, at 4 (1991) (Section 1153 “is relevant in that

Federal criminal prosecutions under Section 1153 . . . have

resulted in a body of case law with regard to who is an Indian

for purposes of Section 1153. [The 1990 Amendments] incorporate[ ] this case law through its definition of ‘Indian’, and

thereby provide[ ] some consistency between federal and

tribal criminal prosecutions with regard to the class of persons subject to such prosecutions.”) (all emphases added). 

[6] We therefore conclude that to the extent ICRA, as

amended, references § 1153 to define “Indian,” it does so to

incorporate the federal definition of “Indian.” ICRA does not

make Indian status an essential element of every tribal misdemeanor offense.

V

Timely Dispute of Indian Status

Dawn Eagle does not claim that she did not have notice of

the Tribe’s position that she was an Indian or that she timely

disputed her Indian status such that the prosecution was

required to prove that she was an Indian. In any event, we are

satisfied that no due process violation occurred in this case.

With regard to notice, the probable cause statement

attached to the Tribe’s second complaint alleged that Dawn

Eagle was an Indian. Although the Tribe proceeded against

Dawn Eagle only on the first complaint, the second complaint

nevertheless put Dawn Eagle on notice of the Tribe’s position

that she was an Indian.

[7] Dawn Eagle therefore could have timely disputed the

issue of Indian status, but she did not. Instead, she waited

6804 EAGLE v. YERINGTON PAIUTE TRIBE
until her closing argument to assert that the prosecution had

failed to prove that she was an Indian. Dawn Eagle did not

contend that the tribal court lacked jurisdiction over her

because she was not an Indian; she only asserted that the prosecution had failed to prove she was an Indian. Even assuming

this was sufficient to raise the jurisdictional issue, it was

untimely. Because section 1-21-030 requires the tribal prosecution to prove Indian status beyond a reasonable doubt, it

implicitly contemplates that a defendant’s challenge will

come at a point in the case when the prosecution can introduce the required proof. Here, Dawn Eagle waited until after

the close of evidence at trial—a point when the time to prove

her Indian status had passed—before she raised the issue.

Dawn Eagle waited too long. 

VI

Conclusion

[8] We affirm the district court’s denial of Dawn Eagle’s

petition for a writ of habeas corpus. Indian status is not an

essential element of the tribal misdemeanor offense of which

Dawn Eagle was convicted, and the Tribe was not required to

prove it beyond a reasonable doubt when she did not timely

raise the issue.

AFFIRMED.

EAGLE v. YERINGTON PAIUTE TRIBE 6805