Metropolitan News-Enterprise


Wednesday, February 11, 2009


Page 4


Ninth Circuit: Man Not ‘Indian’ Enough for Assault-by-Indian Conviction


By STEVEN M. ELLIS, Staff Writer


A divided panel of the Ninth U.S. Circuit Court of Appeals ruled yesterday that a Montana man with Blackfeet Indian heritage was not “Indian” enough to be convicted on a federal charge of assault resulting in serious bodily injury by an Indian on an Indian reservation.

Holding the government failed to show Christopher Patrick Cruz had “tribal or federal government recognition as an Indian” when he severely injured another guest in an alcohol-fueled altercation at a motel on the Blackfeet reservation in northwest Montana, the panel ruled that the district judge plainly erred when he denied Cruz’s mid-trial motion for acquittal, and vacated his conviction.

However, Chief Judge Alex Kozinski—citing Cruz’s “descendant” status, previous criminal charges before the tribe’s court and presence on the reservation—dissented from what he called the majority’s “vigorous verbal calisthenics,” accusing the panel of “muck[ing] up several already complex areas of the law and do[ing] grave injury to our plain error standard of review.”

Cruz was convicted under 18 U.S.C. § 113(a)(6)—a federal offense when committed by an Indian on an Indian reservation under Sec. 1153—for a December 2006 assault on Eudelma White Grass, another guest at a motel in the town of Browning, located on the eastern edge of Glacier National Park just below the Canadian border.

The son of a Hispanic father and a mother who was part Blackfeet and part Blood Indian, a Canadian tribe, Cruz was born in 1987 and lived on the Blackfeet reservation for three to four years as a child before moving away.

He ultimately returned in 2005, and rented a room at the motel.

Being 29/128 Blackfeet, Cruz held “descendant” status in the tribe, entitling him to certain benefits. However, he was not eligible to become an enrolled member of any tribe, and he never took advantage of the benefits.

Cruz similarly never participated in Indian religious ceremonies or dance festivals, never voted in a tribal election, and did not hold a tribal identification card.

Both Cruz’s public school and his later job as a firefighter for the federal Bureau of Indian Affairs were open to non-Indians, and although he was at one time arrested and brought before the tribal court for prosecution, there was no evidence regarding the nature of the prosecution, to what stage it proceeded, or whether he was ever determined for the purposes of the prosecution to be an Indian.

At trial on the federal charge, Cruz moved for judgment of acquittal at the close of the prosecution’s case in chief, contending that the government failed to establish his Indian status beyond a reasonable doubt.

U.S. District Court Judge Sam E. Haddon of the District of Montana denied the motion, and Cruz was convicted, but Judge Stephen Reinhardt wrote on appeal that Cruz was correct, and reversed.

Commenting that the Ninth Circuit had established “the test for determining an individual’s Indian status” in United States v. Bruce (2005) 394 F.3d 1215, requiring the government to prove a sufficient “degree of Indian blood” and “tribal or federal government recognition,” Reinhardt opined that the government failed to satisfy four factors governing the second prong.

Under the second prong, the government must show, “in declining order of importance,” evidence of tribal enrollment; formal or informal government recognition through receipt of assistance reserved only to Indians; enjoyment of the benefits of tribal affiliation; and social recognition as an Indian through residence on the reservation and participation in Indian social life.

Concluding that the evidence viewed in the light most favorable to the government did not demonstrate that Cruz was an Indian or that he met any of the Bruce factors, Reinhardt wrote that “no rational trier of fact could have found that the government proved the statutory element of § 1153 beyond a reasonable doubt.”

Judge Sidney R. Thomas joined Reinhardt in his opinion, but Kozinski sharply criticized the majority’s reliance on Bruce, remarking that a “fair reading of the opinion discloses that [Bruce is] not even dicta, because it’s descriptive rather than prescriptive.”

Kozinski also criticized the majority for going “a bridge too far” by converting Bruce’s four-part test into a jury instruction, and said the majority had reached “a wholly counterintuitive—and wrong—result.”

He added:

“I hasten to run in the other direction.”

The case is United States v. Cruz, 07-30384.


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