The status of the defendant or victim as an Indian is a material element in most Indian country offense prosecutions. The issue is generally not contested, but occasionally a serious question may be posed. When substantial doubt exists as to whether the defendant is an Indian, indictment can be sought under both 18 U.S.C. §§ 1152 and 1153, provided, of course, that the other conditions for indictment under those statutes are present. See United States v. Driver, 755 F. Supp. 885 (D.S.D.), aff'd, 945 F.2d 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 regarded [by the tribe or the government] as one of its members for criminal jurisdiction purposes. See, e.g., United States v. Rogers, 45 U.S. (4 How.) 567, 573 (1846); United States 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. 859 (1979). See also United States v. Driver, 755 F. Supp. 885 (D.S.D.), aff'd, 945 F.2d 1410 (8th 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 been "acknowledged" or "recognized" by the federal government, was properly prosecuted in state court as a non-Indian for an assault upon a non-Indian on the Blackfoot 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 Federal 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 be the best source to identify acknowledged Indian tribes whose members or affiliates satisfy the threshold criminal jurisdiction inquiry." LaPier v. McCormick, 986 F.2d 303, 305 (9th Cir. 1993). The Bureau of Indian Affairs (BIA) can identify currently recognized tribes and provide testimony on that issue.
Tribal membership can generally be established through BIA or tribal records. Enrollment "has not been held to be an absolute requirement for federal jurisdiction." United States v. Antelope, 430 U.S. 641, 647 n. 7 (1977). It is, however, "the common evidentiary means of establishing Indian status, but it is not the only means, nor is it necessarily determinative." United States 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. 859 (1979).
Canadian tribes are not federally acknowledged and it has been held that their members are not to be treated as Indians, either as perpetrators or victims, under 18 U.S.C. §§ 1152 or 1153. See United States v. Dennis, No. CR91-99WD (W.D. Wash. June 21, 1991)(dismissing case against a Canadian Nootka charged with stabbing his Lummi wife on the Lummi Reservation where they both resided.) Dennis had previously secured dismissal of his case in 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 ILR 5009.
The termination of federal recognition of a tribe similarly deprives its members of Indian status for purposes of prosecution for offenses committed in Indian country. See United States v. Heath, 509 F.2d 16 (9th Cir. 1974); St. Cloud v. United States, 702 F. Supp. 1456 (D.S.D. 1988).
The requirement that an Indian be a member or affiliate of a federally recognized tribe is grounded in the doctrine that providing benefits to Indians or imposing obligations upon them is legitimate only when based upon the governmental relationship between the federal government and the tribes, so that the difference in treatment is not race-based but arises from "political status." See United States v. Antelope, 430 U.S. 641 (1977); Morton v. Mancari, 417 U.S. 535 (1974).
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