658 F.3d 873 (9th Cir. 2011), 10-30274, United States v. LaBuff

Docket Nº:10-30274.
Citation:658 F.3d 873
Opinion Judge:PAEZ, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Gentry Carl LaBUFF, Defendant-Appellant.
Attorney:Daniel Donovan, Attorney at Law, Great Falls, MT, for the appellant. Michael W. Cotter, U.S. Attorney, and E. Vincent Carroll, Assistant U.S. Attorney, Great Falls, MT, for the appellee.
Judge Panel:Before: RAYMOND C. FISHER, RONALD M. GOULD, and RICHARD A. PAEZ, Circuit Judges.
Case Date:July 01, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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658 F.3d 873 (9th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,


Gentry Carl LaBUFF, Defendant-Appellant.

No. 10-30274.

United States Court of Appeals, Ninth Circuit.

July 1, 2011

Submitted June 8, 2011.[*]

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Daniel Donovan, Attorney at Law, Great Falls, MT, for the appellant.

Michael W. Cotter, U.S. Attorney, and E. Vincent Carroll, Assistant U.S. Attorney, Great Falls, MT, for the appellee.

Appeal from the United States District Court for the District of Montana, Sam E. Haddon, District Judge, Presiding. D.C. No. 4:10-cr-00023-SEH-1.



PAEZ, Circuit Judge:

The Major Crimes Act, 18 U.S.C. § 1153, provides federal criminal jurisdiction for certain crimes committed by Indians in Indian country.1 We previously have noted that determining who is an Indian under § 1153 is not easy, as the statute does not define the term " Indian." United States v. Maggi, 598 F.3d 1073, 1075 (9th Cir.2010) (citing Felix S. Cohen's Handbook of Federal Indian Law at 24 (Rennard Strickland et al. ed., 1982)). Our circuit, however, has developed a specific framework for determining whether a person can be prosecuted by the federal government under § 1153. To meet its burden, the government must prove both that

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the defendant has a sufficient " degree of Indian blood" and has " tribal or government recognition as an Indian." United States v. Bruce, 394 F.3d 1215, 1223 (9th Cir.2005) (internal quotations omitted).

Gentry Carl LaBuff was charged with robbery and aiding and abetting robbery in Indian country in violation of 18 U.S.C. §§ 1153(a) and 2111. A jury convicted LaBuff of these charges following a two-day trial. On appeal, LaBuff contends that the government did not present sufficient evidence to establish that he is an " Indian" for purposes of prosecution under § 1153. We disagree and conclude that, in light of all the evidence presented at trial, a reasonable trier of fact could have found that LaBuff is an Indian. We therefore affirm his conviction.


LaBuff was born in 1979 to Levi Samuel LaBuff and Margie Downey. His mother is white and his father is an enrolled member of the Blackfeet Tribe. The Blackfeet are a federally recognized tribe based in northern Montana. Given his parents' heritage, LaBuff is 5/32 Blackfeet Indian and 1/16 Cree Indian.

Because LaBuff's father is a member of the Blackfeet Tribe, the Tribe designated LaBuff as a " descendant of a member" 3 of the tribe. LaBuff, however, is not an enrolled member of the Blackfeet Tribe or any other Indian tribe. LaBuff's descendant status entitles him to receive medical care at the Blackfeet Community Hospital, to receive educational grants, and to fish and hunt on the reservation. The Blackfeet Community Hospital is a federally-operated facility under the authority of the Indian Health Service. The hospital's non-emergency services are limited to enrolled tribal members and other non-member Indians. Because the hospital recognizes LaBuff as an Indian person, he has received free health care services there since 1979.

LaBuff was born and raised on the Blackfeet Reservation. As a child, LaBuff attended a public school on the reservation that is open to non-Indians. With the exception of a brief six-month period when LaBuff lived in Washington State, he has lived on the reservation his entire life. Although LaBuff has descendant status, he is not eligible to vote in tribal elections and he has not otherwise participated in tribal cultural activities.

On multiple occasions, LaBuff has been arrested, prosecuted, and convicted of crimes under the jurisdiction of the tribal court. LaBuff, however, has never before challenged the tribal court's exercise of jurisdiction on the basis of his alleged status as a non-Indian.

On October 25, 2008, LaBuff and his cousin robbed a Subway restaurant that was located within the boundaries of the Blackfeet Reservation in Browning, Montana. They were arrested and charged by indictment with robbery and aiding and abetting robbery in violation of 18 U.S.C. § 2111, which is a federal offense when committed by an Indian on an Indian reservation,

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18 U.S.C. § 1153. LaBuff pleaded not guilty and proceeded to trial, where his Indian status was a contested issue. At the close of the government's case-in-chief, LaBuff moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29 on the ground that the evidence presented by the government was insufficient to establish his Indian status beyond a reasonable doubt. The district court denied the motion. At the conclusion of the trial, LaBuff renewed his motion for a judgment of acquittal. The court reserved ruling on LaBuff's renewed motion. The jury subsequently found LaBuff guilty and the district court denied LaBuff's renewed motion for judgment of acquittal. Following imposition of a 62-month prison sentence, LaBuff timely appealed.


We review de novo the sufficiency of the evidence, United States v. LeVeque, 283 F.3d 1098, 1102 (9th Cir.2002), and consider whether, " after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319, 99 S.Ct. 2781 (emphasis in original).


Native American tribes generally have exclusive jurisdiction over crimes committed by Indians against Indians in Indian country. Two federal statutes, however, provide for federal jurisdiction over such crimes. The first statute, 18 U.S.C. § 1152, known as the General Crimes Act,4 grants federal jurisdiction over certain crimes committed by non-Indians against Indians in Indian country, but excludes crimes committed by one Indian against another. The second statute, 18 U.S.C. § 1153, known as the Major Crimes Act,5 creates federal jurisdiction for cases in which an Indian commits one of a list of enumerated crimes against another Indian in Indian country.

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Under § 1153, " [a] ‘ defendant's Indian status is an essential element ... which the government must allege in the indictment and prove beyond a reasonable doubt.’ " United States v. Cruz, 554 F.3d 840, 845 (9th Cir.2009) (quoting Bruce, 394 F.3d at 1229). Although there are a variety of statutory definitions 6 of " Indian," Congress has not defined " Indian" as used in §§ 1152 and 1153. Maggi, 598 F.3d at 1077.

In the absence of a statutory definition, we have applied a two-part test for determining whether a person is an Indian for the purpose of establishing federal jurisdiction over crimes in Indian country. We have concluded that, for a criminal defendant to be subject to § 1153, the government must present evidence to establish that the defendant has a sufficient " degree of Indian blood," and that he has " tribal or federal government recognition as an Indian." Bruce, 394 F.3d at 1223, 1224.

Here, the government's evidence showed that LaBuff is 5/32 Blackfeet Indian.7 In light of this evidence, LaBuff concedes that he possesses a sufficient degree of Indian blood. The government therefore satisfied the first prong. Thus, we turn to the second prong, i.e. whether the government established that LaBuff was recognized by the government or the Tribe as an Indian. In Bruce, we outlined four factors that govern the second prong; those four factors are, " in declining order of importance, evidence of the following: 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." Bruce, 394 F.3d at 1224. These factors are not exclusive. Maggi, 598 F.3d at 1081.

LaBuff first contends that because he was not an enrolled member in the Blackfeet Tribe, " the government failed to prove...

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