394 F.3d 1215 (9th Cir. 2005), 03-30171, United States v. Bruce

Docket Nº:03-30171.
Citation:394 F.3d 1215
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Violet BRUCE, Defendant-Appellant.
Case Date:January 13, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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394 F.3d 1215 (9th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,


Violet BRUCE, Defendant-Appellant.

No. 03-30171.

United States Court of Appeals, Ninth Circuit

January 13, 2005

Argued and Submitted March 4, 2004.

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[Copyrighted Material Omitted]

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John Rhodes and Anthony R. Gallagher, Federal Public Defender's Office, Missoula, MT, Michael Donahoe, Federal Defenders of Montana, Helena, MT, for the defendant-appellant.

Marcia Hurd, William W. Mercer and Klaus P. Richter, United States Attorney's Office, Billings, MT, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana, Sam E. Haddon, District Judge, Presiding. D.C. No. CR-02-00089-SEH.

Before: O'SCANNLAIN, RYMER, and BYBEE, Circuit Judges.

BYBEE, Circuit Judge.

Violet Bruce appeals her conviction for simple assault on an Indian child less than 16 years of age on a reservation in violation of 18 U.S.C.§§ 1152 and 113(a) (5). In her sole claim of error, Bruce asserts that the case against her was brought under the wrong statute. The government charged Bruce under § 1152, which covers offenses committed in Indian country, but excepts crimes committed by an Indian against another Indian. Bruce contends that she is an Indian, and the government should have charged her under 18 U.S.C. § 1153, which covers certain offenses committed by an Indian in Indian country. The district court denied her motion to dismiss on this ground. We conclude that Bruce presented sufficient evidence that, if believed, established her Indian status. We further hold that the court's error was not harmless. We therefore reverse.


In March 2002, Bruce, a resident of the Fort Peck Indian Reservation in northeast Montana, choked her five-year-old son, Cylus, and in so doing, bruised his face and neck. On September 23, 2002, a grand jury indicted Bruce for assault on a child less than 16 years of age on an Indian reservation, in violation of 18 U.S.C. §§ 1152 and 113(a) (5). The indictment stated, "That on or about March 25, 2002, at or near Wolf Point, in the State and District of Montana, and within the exterior boundaries of the Fort Peck Indian Reservation, being Indian country, the defendant, VIOLET BRUCE, did assault another, an Indian person who had not attained the age of 16 years ..., all in violation of 18 U.S.C. §§ 1152 and 113(a) (5)." The indictment, thus, alleged that the victim was an Indian person, but said nothing about Bruce's status.

Bruce admitted that she choked Cylus but, on her attorney's advice, she pled not guilty. During the district court proceedings, Bruce repeatedly argued that she was Indian. Before trial, she moved to dismiss the indictment on the ground that it should have been brought under 18 U.S.C. § 1153, which applies to certain crimes by Indians, rather than § 1152, which excepts crimes by Indians against Indians. The court denied the motion.

At trial, Bruce's only defense was her claim of Indian status. At the close of the government's case, Bruce again raised the argument in a motion for judgment of acquittal under Fed.R.Crim.P. 29, which the district court also denied. At the close of all of the evidence, the court considered her Indian status defense at length. Bruce introduced evidence that she is one-eighth Chippewa; that her mother is an

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enrolled member of the Turtle Mountain Tribe of Oklahoma; that she was born on an Indian Reservation; that she currently lives on the Fort Peck Indian Reservation; that two of her children are enrolled members of an Indian tribe; that she has been treated by Poplar Indian Health Services and the Spotted Bull Treatment Center; that whenever she was arrested it "had to have been [by] a tribal person"; and that she has been arrested by tribal authorities "all her life." The district court concluded that, under § 1152, Bruce's Indian status was an affirmative defense on which Bruce had the burden of production and that she had not borne this burden. Accordingly, the court declined to submit the issue to the jury.

A jury convicted Bruce of violating § 1152 and the district court sentenced her to three years' probation. Following her conviction, Bruce unsuccessfully moved to arrest the judgment under Fed.R.Crim.P. 34 on the basis of her claimed Indian status. In support of her motion, Bruce introduced additional evidence showing that in 1991 she was treated as an Indian child by the Fort Peck Tribal Court, exercising jurisdiction pursuant to the Indian Child Welfare Act, 25 U.S.C. § 1901 (2004). After her motion was denied, Bruce took this appeal.


We review de novo the district court's determination of Indian status under 18 U.S.C. § 1152 because it is a mixed question of law and fact. United States v. Eric B., 86 F.3d 869, 877 (9th Cir. 1996); United States v. Keys, 103 F.3d 758, 761 (9th Cir. 1996) (reviewing Indian status de novo). Mixed questions of law and fact are those in which "the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard." Pullman-Standard v. Swint, 456 U.S. 273, 289 n. 19, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982).


A. Federal Criminal Jurisdiction in Indian Country

The exercise of criminal jurisdiction over Indians and Indian country is a "complex patchwork of federal, state, and tribal law," which is better explained by history than by logic. Duro v. Reina, 495 U.S. 676, 680 n. 1, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990). The historical background of federal criminal jurisdiction in Indian country can be traced to colonial times, when Indian territory was entirely the province of the tribes and the tribes were understood to possess jurisdiction over all persons and subjects present on Indian lands. See WILLIAM C. CANBY, JR., AMERICAN INDIAN LAW IN A NUTSHELL 133 (2004). This policy continued until shortly after the ratification of the Constitution, when Congress extended federal jurisdiction to non-Indians committing crimes against Indians in Indian territory. 1 Stat. 138 (1790); 1 Stat. 743 (1799); 2 Stat. 139 (1802). Congress further extended criminal jurisdiction in 1817 to cover crimes committed by Indians and non-Indians in Indian Country; notably, Congress excepted intra-Indian offenses, or crimes in which both the victim and perpetrator were Indian. 3 Stat. 383 (1817).

The 1817 Act served as the predecessor to 18 U.S.C. § 1152, which is sometimes called the Indian General Crimes Act ("IGCA"). Section 1152 makes federal enclave criminal law--a concrete body of law governing areas within the sole and exclusive jurisdiction of the United States--generally applicable to crimes committed in "Indian country." See 18 U.S.C. § 1151 (defining "Indian country"). Section 1152 provides in full:

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Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.

This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.

In its original form, the IGCA ensured that federal criminal laws reached non-Indians committing crimes in Indian country, while at the same time preserving the right of the tribes to punish their own. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 201, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978).

The IGCA excepts from federal criminal jurisdiction three categories of offenses that might otherwise be thought to be within the jurisdiction of the tribes: "offenses committed by one Indian against the person or property of another Indian," offenses committed by an Indian who has been punished by the tribe, and cases secured by treaty to the exclusive jurisdiction of a tribe. 18 U.S.C. § 1152. Although the "plain language" of § 1152 covers crimes in Indian country committed by non-Indians against non-Indians, Mull v. United States, 402 F.2d 571, 573 (9th Cir. 1968), the Supreme Court has held that states retain exclusive jurisdiction over general crimes committed by non-Indians against non-Indians in Indian country. Organized VIll. of Kake v. Egan, 369 U.S. 60, 68, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962); New York ex rel. Ray v. Martin, 326 U.S. 496, 66 S.Ct. 307, 90 L.Ed. 261 (1946); Draper v. United States, 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419 (1896); United States v. McBratney, 104 U.S. 621, 26 L.Ed. 869 (1881). Thus, under the IGCA, the criminal laws of the United States apply to offenses committed in Indian country by non-Indians against Indians and by Indians against non-Indians; "[section] 1152 establishes federal jurisdiction over interracial crimes only." United States v. Prentiss, 256 F.3d 971, 974 (10th Cir. 2001) (per curiam) (en banc).

The exception in the IGCA preserves the right of tribal courts to try offenses committed in Indian country by Indians against Indians, while recognizing that Indian tribes generally do not have jurisdiction over non-Indians. See Oliphant, 435 U.S. at 195-206 & n. 8, 98 S.Ct. 1011; see also 25 U.S.C.§ 1302(2) (recognizing "the inherent power of Indian tribes ... to exercise criminal jurisdiction over all Indians"). The Supreme Court has interpreted the exception as manifesting a broad congressional respect for tribal sovereignty in matters affecting only Indians. See United States v. Quiver, 241 U.S. 602, 36 S.Ct. 699, 60 L.Ed. 1196 (1916) (broadly interpreting the intra-Indian offense exception to extend to...

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