8.113 DETERMINATION OF INDIAN STATUS FOR OFFENSES COMMITTED WITHIN INDIAN COUNTRY (18 U.S.C. § 1153)
In order for the defendant to be found to be an Indian, the government must prove the following, beyond a reasonable doubt:
First, the defendant has descendant status as an Indian, such as being a blood relative to a parent, grandparent, or great-grandparent who is clearly identified as an Indian from a federally recognized tribe; and
Second, there has been tribal or federal government recognition of the defendant as an Indian.
Whether there has been tribal or federal government recognition of the defendant as an Indian is determined by considering four factors, in declining order of importance, as follows:
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.
The question of Indian status operates as a jurisdictional element under 18 U.S.C. § 1153. See United States v. Bruce, 394 F.3d 1215, 1223-24 (9th Cir.2005) (describing two prong test: Indian blood and tribal or federal government recognition as an Indian). "Some blood" evidence must be from a federally recognized tribe. United States v. Maggi, 598 F.3d 1073, 1078-79 (9th Cir.2010).The second prong probes whether the Native American has a sufficient nonracial link to a formerly sovereign people. It is error for the court to fail to instruct the jury of the "declining order of importance" of the four factors used to determine whether there has been tribal or federal government recognition of the defendant as a Native American. United States v. Cruz, 554 F.3d 840, 851 n. 17 (9th Cir.2009). "Although some prefer the term ‘Native American’ or ‘American Indian,’ we use the term ‘Indian’ . . . as that is the term employed in the statutes at issue. . . ." Id. at 842 n.1.
Offenses committed within Indian country are identified in 18 U.S.C. § 1153(a) as follows: murder, manslaughter, kidnapping, maiming, a felony under chapter 109A (sexual abuse felonies), incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury (as defined in 18 U.S.C. § 1365), an assault against an individual who has not attained the age of 16 years, arson, burglary, robbery, and a felony under section 661 (embezzlement and theft) committed by any Indian against the person or property of another Indian or other person within Indian country.
Section 1153(b) provides: "Any offense referred to in subsection (a) of this section that is not defined and punished by Federal law in force within the exclusive jurisdiction of the United States shall be defined and punished in accordance with the laws of the State in which such offense was committed as are in force at the time of such offense."
Whether the offense occurred at a particular location is a question of fact to be decided by the jury, with the court determining the jurisdictional question of whether the location is within Indian country as a question of law. See United States v. Gipe, 672 F.2d 777, 779 (9th Cir.1982).
For the enumerated offenses prosecuted under 18 U.S.C. § 1153, the court should give this instruction, and the jury instruction used for the offense should include two additional elements, as follows:
______ [Number of element], the ____ [specify offense] occurred at a place within the _____ [name of the alleged Indian Country where the offense occurred], which I instruct you is in Indian Country.
______ [Number of element], the defendant is an Indian.