10th Circuit: Government Fails to Prove Native Status in Tribal Land Cases

• The 10th Circuit has overturned several child sex abuse convictions after finding that the government failed to prove that the defendants were not Native Americans.
• The court's decision is rooted in a 2001 en banc decision in U.S. v Prentiss, which established that federal prosecutors must prove beyond a reasonable doubt that a defendant does not have any 'Indian blood.'
• The 10th Circuit has applied this rule in three cases within the past three years, including the convictions of Dennis Herbert and Joel Ruiz.
• The government bears the affirmative burden of proving that a defendant is an Indian when subject matter jurisdiction is asserted under 18 U.S.C. §1153.
• The 10th Circuit's decision may lead to a shift in the burden of proof and potentially affect the outcome of similar cases.

In recent years, the 10th Circuit has overturned several child sex abuse convictions after finding that the government failed to prove that the defendants were not Native Americans. This anomaly stems from a 2001 en banc decision in U.S. v Prentiss, which established that federal prosecutors must prove beyond a reasonable doubt that a defendant does not have any 'Indian blood.' The 10th Circuit has applied this rule in three cases within the past three years, including the convictions of Dennis Herbert and Joel Ruiz. In each case, the court found that the government had failed to meet its burden of proof, resulting in the overturning of the jury's verdict and the dismissal of the defendant's conviction.

The 10th Circuit's decision is rooted in a centuries-old rule disqualifying the federal government from prosecuting crimes between Native Americans on reservations. The General Crimes Act, passed in 1817, extended federal law to tribal reservations but exempted crimes between Native Americans. However, the Major Crimes Act of 1885 removed this exception for certain crimes. Today, when subject matter jurisdiction is asserted under 18 U.S.C. §1153, the government bears the affirmative burden of proving that a defendant is an Indian. This has led to a situation where defendants can avoid prosecution by claiming Native American status without providing any evidence.

The 10th Circuit's decision may have significant implications for future prosecutions in tribal lands. If the court's ruling stands, it could lead to a shift in the burden of proof and potentially affect the outcome of similar cases. This could result in more defendants being acquitted due to their claimed Native American status, which would undermine the ability of law enforcement to hold perpetrators accountable for crimes committed on tribal land. As Paige Messec, Chief of the Appellate Division for the U.S. Attorney's Office, noted, 'The court has the opportunity today to correct a mistake made 20 years ago, one that deprives the victims of Dennis Herbert and Joel Ruiz of justice.'

Lawyers should watch for the potential impact on future prosecutions in tribal lands, as the 10th Circuit's decision may lead to a shift in the burden of proof and potentially affect the outcome of similar cases.

Source: Original reporting via Courthouse News Service