FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 11-30065

Plaintiff-Appellee, D.C. No.

v.  4:10-cr-00103-

SEH-2 JUVENILE MALE,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the District of Montana

Sam E. Haddon, District Judge, Presiding

Argued and Submitted

December 8, 2011—Seattle, Washington

Filed January 20, 2012

Before: Ralph B. Guy, Jr.,* M. Margaret McKeown, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge McKeown

*The Honorable Ralph B. Guy, Jr., Senior Circuit Judge for the Sixth

Circuit, sitting by designation. 

625
COUNSEL

Daniel Donovan, Great Falls, Montana, for the defendantappellant.

Michael W. Cotter, United States Attorney, Michael T.

Wolfe, Assistant United States Attorney, U.S. Attorney’s

Office, Helena, Montana, for the plaintiff-appellee.

OPINION

McKEOWN, Circuit Judge:

A juvenile male appeals the district court’s determination

that he is an “Indian” under 18 U.S.C. § 1153, which provides

federal criminal jurisdiction for certain crimes committed by

UNITED STATES v. JUVENILE MALE 627
Indians in Indian country. The juvenile claims that he does

not identify as Indian, and is not socially recognized as Indian

by other tribal members. Nonetheless, he is an enrolled tribal

member, has received tribal assistance, and has used his membership to obtain tribal benefits. Because the juvenile is Indian

by blood and easily meets three of the most important factors

used to evaluate tribal recognition laid out in United States v.

Bruce, 394 F.3d 1215 (9th Cir. 2005), he is an “Indian” under

§ 1153, and we uphold his conviction.

BACKGROUND1

The juvenile was charged in federal court under the Major

Crimes Act, 18 U.S.C. § 1153. He admits to all elements of

the crime and disputes only his Indian status. The juvenile is

at least one quarter Indian by blood, and is an enrolled member of a federally recognized tribe. He resides on the tribal

reservation and used his membership to receive benefits available exclusively to tribal members. The juvenile nonetheless

claims that he does not consider himself Indian, and has no

social recognition or acceptance among the tribe. 

The juvenile appeals the district court’s determination in a

bench trial that these facts satisfy the government’s burden to

prove his Indian status beyond a reasonable doubt. The government bears the burden of establishing the juvenile’s status

as an Indian. Following trial, we review de novo the sufficiency of the evidence and consider 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.” United States

v. LaBuff, 658 F.3d 873, 876 (9th Cir. 2011) (emphasis in

original) (quoting Jackson v. Virginia, 443 U.S. 307, 319

1Because the record in this matter is sealed, we reference only the facts

discussed in open court during oral argument. The remaining facts, under

seal, are known to the parties and the district court and further support our

conclusion that the juvenile qualifies as Indian under § 1153. 

628 UNITED STATES v. JUVENILE MALE
(1979)). As we noted in Maggi, “[w]e have little guidance as

to the quantum of evidence necessary to sustain Indian status

jurisdiction. Sorting through the handful of circuit cases

addressing the issue simply underscores the need for case-bycase analysis and the necessity of invoking the Jackson v. Virginia standard, as we do in other criminal cases.” United

States v. Maggi, 598 F.3d 1073, 1083 (9th Cir. 2010).

DISCUSSION

[1] “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.” LaBuff, 658 F.3d

at 877 (citations omitted). Although § 1153 does not define

the term “Indian,” we have fashioned a specific framework

for determining an individual’s Indian status. Bruce “provides

a thoughtful discussion of federal jurisdiction in Indian country.” Maggi, 598 F.3d at 1077. According to Bruce, a defendant is Indian if the government proves beyond a reasonable

doubt that he has: (1) a sufficient degree of Indian blood and;

(2) tribal or federal government recognition as an Indian.

Bruce, 394 F.3d at 1223-24. The juvenile concedes the first

prong—that he has sufficient Indian blood. 

[2] In assessing the second prong, Bruce outlined four factors that a court should consider to determine whether an individual has tribal or federal government recognition as an

Indian: (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. Bruce lists these factors in declining order of importance, United States v. Cruz, 554 F.3d 840, 851 n.17 (9th Cir.

2009) (citing Bruce, 394 F.3d at 1224), and we acknowledge

that these factors, “while broad, should not be deemed exclusive.” Maggi, 598 F.3d at 1081. 

UNITED STATES v. JUVENILE MALE 629
[3] Here, the juvenile concedes that the government proved

the first three factors: he is enrolled in a tribe, received assistance and benefits reserved only to Indians, and enjoys the

benefits of tribal affiliation. The real dispute centers on the

final prong—social recognition as an Indian through residence on a reservation and participation in Indian social life—

which the juvenile urges does not apply because he claims not

to have obtained social recognition as Indian, and, despite living on the reservation, does not identify as Indian himself.

[4] In Bruce, we held that there was sufficient proof that

the defendant was Indian even though it was undisputed that

she was not an enrolled member of a tribe. Bruce, 394 F.3d

at 1224 (“Tribal enrollment is the common evidentiary means

of establishing Indian status, but it is not the only means nor

is it necessarily determinative.” (citation and internal quotation marks omitted)). Accordingly, as Bruce did not require

the most important factor to be met, the juvenile need not satisfy the least important Bruce factor before a trier of fact may

conclude he is Indian.

Bruce has been invoked in upholding a criminal conviction

even when all of its factors were not satisfied. Recently, in

LaBuff, we held that the defendant was an Indian even though

he was not an enrolled member of the tribe, and “the evidence

relating to the fourth factor was not particularly strong.” 658

F.3d at 877, 879. LaBuff did not participate in tribal activities,

nor did he vote in tribal elections. Id. at 879. Even so, because

LaBuff had Indian descendant status, received free healthcare

available only to Indians, lived on the reservation his entire

life, and, without objection, was prosecuted in Indian tribal

court for previous crimes, we held that the government had

established his Indian status. Id. 

[5] Here, the juvenile claims that he does not see himself

as Indian, and is not socially recognized as Indian by tribal

members. Even assuming that these facts undermine the government’s effort to establish the final Bruce factor, the juve630 UNITED STATES v. JUVENILE MALE
nile has sufficient Indian blood and meets every other factor,

including the most important factor—tribal enrollment—that

was absent in LaBuff. Social and subjective non-recognition

as Indian may prove to be relevant in a closer case, but cannot

outweigh the proof of the remaining Bruce factors in this one.

Because the juvenile is Indian by blood and easily meets three

of the most important Bruce factors used to evaluate tribal

recognition, we hold that a reasonable trier of fact could find

the juvenile to be an Indian beyond a reasonable doubt, and

did so here. 

AFFIRMED.

UNITED STATES v. JUVENILE MALE 631