Who is an "Indian"?
The status of the defendant or victim as an Indian is a material
element in most Indian country offense prosecutions. The issue is generally
contested, but occasionally a serious question may be posed. When
doubt exists as to whether the defendant is an Indian, indictment can be
under both 18 U.S.C. §§ 1152 and 1153, provided, of course, that
other conditions for indictment under those statutes are present.
United States v. Driver, 755 F. Supp. 885 (D.S.D.), aff'd, 945
1410 (8th Cir. 1991).|
To be considered an Indian, one generally has to have both "a
significant degree of blood and sufficient connection to his tribe to be
[by the tribe or the government] as one of its members for criminal
purposes. See, e.g., United States v. Rogers,
U.S. (4 How.) 567, 573 (1846); United States v. Torres, 733 F.2d 449,
(7th Cir. 1984); United States v. Broncheau, 597 F.2d 1260, 1263 (9th
Cir.), cert. denied, 444 U.S. 859 (1979). See also United
States v. Driver, 755 F. Supp. 885 (D.S.D.), aff'd, 945 F.2d 1410
Cir. 1991). A threshold test, however, is whether the tribe with which
affiliation is asserted is a federally acknowledged tribe. LaPier v.
McCormick, 986 F.2d 303 (9th Cir. 1993)(member of a tribe that had never
"acknowledged" or "recognized" by the federal government, was properly
in state court as a non-Indian for an assault upon a non-Indian on the
Reservation). Federal acknowledgment or recognition of a tribe is a
"prerequisite to . . . [federal] protection, services and benefits . . .
immunities and privileges . . . responsibilities and obligations." 25 CFR
83.2. Lists of acknowledged tribes are periodically published in the
Record by the Secretary of the Interior pursuant to the mandate of 25 CFR
83.6(b). See 53 Fed. Reg. 52829 (December 29, 1988). Although a few
tribes have been recognized since publication of this list, "it appears to
best source to identify acknowledged Indian tribes whose members or
satisfy the threshold criminal jurisdiction inquiry." LaPier v.
McCormick, 986 F.2d 303, 305 (9th Cir. 1993). The Bureau of Indian
(BIA) can identify currently recognized tribes and provide testimony on that
Tribal membership can generally be established through BIA or
records. Enrollment "has not been held to be an absolute requirement for
jurisdiction." United States v. Antelope, 430 U.S. 641, 647 n. 7
It is, however, "the common evidentiary means of establishing Indian status,
it is not the only means, nor is it necessarily determinative." United
v. Torres, 733 F.2d 449, 455 (7th Cir. 1984); United States v.
Broncheau, 597 F.2d 1260, 1263 (9th Cir.), cert. denied, 444 U.S.
Canadian tribes are not federally acknowledged and it has been held
that their members are not to be treated as Indians, either as perpetrators
victims, under 18 U.S.C. §§ 1152 or 1153. See United
v. Dennis, No. CR91-99WD (W.D. Wash. June 21, 1991)(dismissing case
a Canadian Nootka charged with stabbing his Lummi wife on the Lummi
where they both resided.) Dennis had previously secured dismissal of his
state court on the basis of his status as an Indian. The state's effort to
reprosecute was thwarted by the Washington Court of Appeals holding that
reprosecution was barred by the state's failure to appeal the dismissal.
Washington v. Dennis, No. 29131-9-1 (Wash.Ct.App. Dec. 7, 1992), 20
The termination of federal recognition of a tribe similarly
its members of Indian status for purposes of prosecution for offenses
in Indian country. See United States v. Heath, 509 F.2d 16
Cir. 1974); St. Cloud v. United States, 702 F. Supp. 1456 (D.S.D.
The requirement that an Indian be a member or affiliate of a
recognized tribe is grounded in the doctrine that providing benefits to
or imposing obligations upon them is legitimate only when based upon the
governmental relationship between the federal government and the tribes, so
the difference in treatment is not race-based but arises from "political
See United States v. Antelope, 430 U.S. 641 (1977); Morton
Mancari, 417 U.S. 535 (1974).
[cited in USAM 9-20.100]