United States v. Maggi

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

Nos. 08-30223

SHANE MEDORE MAGGI, AKA 09-30052

Shane Maggi,

Defendant-Appellant;  D.C. Nos.

4:07-cr-00125-SEH;

UNITED STATES OF AMERICA, 4:08-CR-00068-SEH

Plaintiff-Appellee,

OPINION

v.

GORDON RAY MANN, Jr.,

Defendant-Appellant.



Appeals from the United States District Court

for the District of Montana

Sam E. Haddon, District Judge, Presiding

Argued and Submitted

September 1, 2009—Seattle, Washington

Filed March 16, 2010

Before: Michael Daly Hawkins, M. Margaret McKeown and

Jay S. Bybee, Circuit Judges.

Opinion by Judge McKeown

4303

UNITED STATES v. MAGGI 4305

COUNSEL

Palmer A. Hoovestal (argued), Hoovestal Law Firm, PLLC,

Helena, Montana, for defendant-appellant Gordon Mann.

4306 UNITED STATES v. MAGGI

James B. Obie, Obie Law, P.C., Helena, Montana; Daniel

Donovan (argued), Great Falls, Montana, for defendant-

appellant Shane Maggi.

William W. Mercer, United States Attorney, E. Vincent Car-

roll (argued), Assistant U.S. Attorney, U.S. Attorney’s Office,

Great Falls, Montana, for government-appellees United States

of America.

OPINION

McKEOWN, Circuit Judge:

The Major Crimes Act, 18 U.S.C. § 1153, provides federal

criminal jurisdiction for certain crimes committed by Indians

in Indian country. As the Supreme Court explained in United

States v. Antelope, “we are dealing [ ] not with matters of

tribal self-regulation, but with federal regulation of criminal

conduct within Indian country implicating Indian interests.”

430 U.S. 641, 646 (1977). Determination of who is an Indian

under the statute is not as easy as it might seem. Indeed, the

statute contains no definition, leaving to the courts the task of

defining “Indian.” See FELIX COHEN, HANDBOOK OF FEDERAL

INDIAN LAW § 3.03[4] (LexisNexis 2005) (“COHEN“). We have

developed a framework for evaluating Indian status under

§ 1153: 1) the presence of some Indian blood indicating tribal

ancestry; and 2) tribal or government recognition as an Indian.

United States v. Bruce, 394 F.3d 1215, 1223 (9th Cir. 2005).

Both prongs must be satisfied to establish Indian status.

Gordon Mann and Shane Maggi appeal from unrelated con-

victions on the same basis, namely that they are not “Indians”

for purposes of prosecution under the Major Crimes Act.

Because there is no evidence that Mann has any blood from

a federally recognized Indian tribe, his conviction must be

vacated. Maggi’s documented blood from a federally recog-

UNITED STATES v. MAGGI 4307

nized tribe is scant—1/64. However, we do not decide the

novel question whether Maggi’s Indian blood degree is ade-

quate; rather, because Maggi lacks sufficient government or

tribal recognition as an Indian, his conviction must also be

vacated. In light of this disposition, we need not consider

Maggi’s additional challenges to the sufficiency of the indict-

ment and the reasonableness of the sentence.

BACKGROUND

I. GORDON MANN

Gordon Mann was convicted in district court in Montana

for one count of aggravated sexual abuse of a minor. Mann

confessed to the criminal conduct, which occurred at his

house, located within the boundaries of the Blackfeet reserva-

tion.

Since 1987, Mann has been an enrolled member of the Lit-

tle Shell Tribe of the Chippewa Cree. This Indian tribe is not

recognized by the federal government, although there is a

longstanding petition for recognition pending. The tribe does

not receive land, medical care, education, housing, federal

grants or other benefits from the federal government that fed-

erally recognized tribes typically receive. The Little Shell

Tribe is, however, recognized as an Indian tribe by the State

of Montana, and has close to 5000 enrolled members who

receive some limited benefits, including access to a medical

clinic and an economic development program.

Tribal enrollment records often include identification of an

individual’s percentage of Indian blood, calculated according

to ancestral connections to a tribe or tribes. This information

is used to establish eligibility for enrollment. Mann’s enroll-

ment record notes that his degree of Indian blood is 10/64

Chippewa and 11/64 “other Indian blood.”

Mann was charged in October 2008 with two counts of

aggravated sexual abuse. Count I was charged under 18

4308 UNITED STATES v. MAGGI

U.S.C. §§ 1153(a), the Major Crimes Act, and 2241(c), sexual

offense in a federal enclave. Count II was charged under 18

U.S.C. §§ 1152, the General Crimes Act, and 2241(c). An ele-

ment of the charge under § 1153(a) was that Mann is an

Indian; an element of the charge under § 1152 was that Mann

is not an Indian.

At trial, Mann maintained that he is not an Indian for pur-

poses of § 1153(a). At the close of the prosecution’s case,

Mann moved for a judgment of acquittal on the ground that

the government had not established his Indian status. The

court denied the motion on the basis that Indian status is a

jury determination. Mann renewed the motion following the

close of evidence, and it was again denied. Using a bifurcated

verdict form, the jury concluded Mann was an Indian, and

found him guilty on Count I, under § 1153. The jury did not

reach Count II, under § 1152.

II. SHANE MAGGI

Shane Maggi was convicted in district court in Montana on

four counts relating to assault with a dangerous weapon and

related firearms charges. Maggi attacked Kelly Hoyt and his

wife, Kimberly Hoyt, in their home, which is within the

boundaries of the Blackfeet Indian reservation.

Maggi’s degree of Indian blood is 1/64 from the Blackfeet

tribe and 1/32 from the Cree tribe, although the record does

not show whether he is descended from a federally recognized

tribe (e.g., Rocky Boy Reservation Chippewa Cree) or a non-

recognized tribe (e.g., Little Shell Tribe Chippewa Cree).

Maggi is not an enrolled member of any Indian tribe. His

mother is an enrolled member of the Blackfeet tribe, which

qualifies Maggi as a “descendant member” of the Blackfeet

tribe and eligible for certain benefits, such as limited treat-

ment from Indian Health Services (IHS), hunting and fishing

rights on the reservation, and access to certain college grants.

Maggi has received treatment at an IHS hospital facility in

UNITED STATES v. MAGGI 4309

Montana. Maggi has also been prosecuted in several unrelated

prior actions in the Blackfeet tribal court, which has jurisdic-

tion to prosecute enrolled and descendant members of the

Blackfeet tribe. According to testimony by the Hoyts, Maggi

held himself out as an Indian and discussed attending pow-

wows and participating in sweats and smudging, which are

tribal religious practices.

Maggi was charged with four counts: (I) under 18 U.S.C.

§§ 113(a)(3) and 1153, assault with a dangerous weapon of

Kelly Hoyt; (II) the same, as to Kimberly Hoyt; (III) under 18

U.S.C. § 924(c)(1)(A)(iii), discharging a firearm during a

crime of violence, as alleged in Count I; and (IV) under 18

U.S.C. § 924(c)(1)(A)(ii), brandishing a firearm during a

crime of violence, as alleged in Count II.

Maggi entered a plea of not guilty and proceeded to trial.

At the close of the prosecution’s case, Maggi moved for a

judgment of acquittal on the basis that he is not an Indian, as

required under § 1153. As in Mann’s case, the court denied

the motion on the basis that Indian status must be determined

by the jury. Maggi did not present a case, and so the record

was closed following the decision on the motion to acquit.

The jury convicted Maggi on all four counts. On appeal,

Maggi does not challenge that he perpetrated the underlying

criminal conduct. Maggi instead contends that he is not an

Indian for purposes of prosecution under § 1153.

ANALYSIS

I. INDIAN STATUS UNDER § 1153

[1] The Major Crimes Act, 18 U.S.C. § 1153, establishes

federal criminal jurisdiction over certain serious crimes com-

mitted in Indian country by Indian defendants. The General

Crimes Act, 18 U.S.C. § 1152, provides federal criminal juris-

diction over certain crimes committed in Indian country when

either the defendant or the victim, but not both, are Indian.

4310 UNITED STATES v. MAGGI

Section 1152 is not directly at issue in these appeals, but is

referenced because of the interrelationship between the stat-

utes and the fact that the definition of Indian status is relevant

to both provisions. The Bruce case provides a thoughtful dis-

cussion of federal jurisdiction in Indian country, with a focus

on Indian status under these two statutes. 394 F.3d at 1218-

22.

[2] Section 1153(a) reads:

Any Indian who commits against the person or prop-

erty of another Indian or other person any of the fol-

lowing offenses, namely, murder, manslaughter,

kidnaping, maiming, a felony under chapter 109A,

incest, assault with intent to commit murder, assault

with a dangerous weapon, assault resulting in serious

bodily injury (as defined in section 1365 of this

title), an assault against an individual who has not

attained the age of 16 years, felony child abuse or

neglect, arson, burglary, robbery, and a felony under

section 661 of this title within the Indian country,

shall be subject to the same law and penalties as all

other persons committing any of the above offenses,

within the exclusive jurisdiction of the United States.

Under § 1153(a), the defendant’s status as an Indian is an ele-

ment of the offense that must be alleged in the indictment and

proved beyond a reasonable doubt. United States v. Cruz, 554

F.3d 840, 845 (9th Cir. 2009) (quoting Bruce, 394 F.3d at

1229).

[3] Because there is no statutory definition of who is an

Indian, courts have stepped in to spell out the meaning of “In-

dian” for purposes of criminal jurisdiction. Reaching back to

the mid-nineteenth century, in United States v. Rogers, the

Supreme Court announced that to be considered an Indian for

purposes of criminal jurisdiction, an individual must have an

ancestral connection to an Indian tribe in addition to a current

UNITED STATES v. MAGGI 4311

social affiliation with the tribe. 45 U.S. (4 How.) 567, 573

(1846). Based on Rogers, the two-part test developed and

took root. See COHEN, supra, § 3.03[4] (“The common test

that has evolved after United States v. Rogers, for use with

both of the federal Indian country criminal statutes, considers

Indian descent, as well as recognition as an Indian by a feder-

ally recognized tribe.”). Bruce articulates this test as follows:

The term “Indian” is not statutorily defined, but

courts have “judicially explicated” its meaning.

[United States v.] Broncheau [597 F.2d 1260, 1263

(9th Cir. 1979), cert. denied, 444 U.S. 859 (1979)].

The generally accepted test for Indian status consid-

ers “ ‘(1) the degree of Indian blood; and (2) tribal

or government recognition as an Indian.’ ” United

States v. Keys, 103 F.3d 758, 761 (9th Cir. 1996)

(quoting Broncheau, 597 F.2d at 1263); see also

United States v. Rogers, 45 U.S. (4 How.) 567, 573

(1846) (interpreting the meaning of “Indian” under

the Trade and Intercourse Act of 1834, the precursor

of the Major Crimes Act, not to apply to a white man

who had been adopted into the Cherokee tribe). A

person claiming Indian status must satisfy both

prongs.

394 F.3d at 1223. Although Bruce arose in the context of

§ 1152, four years later we confirmed that the same test

applies under § 1153. Cruz, 554 F.3d at 845.

[4] There is an important overlay to the Bruce test: To be

considered an Indian under §§ 1152 or 1153, the individual

must have a sufficient connection to an Indian tribe that is

recognized by the federal government. Affiliation with a tribe

that does not have federal recognition does not suffice. We

directly addressed this issue in LaPier v. McCormick, 986

F.2d 303 (9th Cir. 1993). LaPier challenged his Montana state

court conviction, maintaining that he should have been tried

in federal court under § 1153 because he was an Indian. Id.

4312 UNITED STATES v. MAGGI

LaPier was an enrolled member of the Little Shell Tribe of

Chippewa, the same tribe in which Mann is enrolled. Id. at

306. We concluded that our analysis of LaPier’s Indian status

could be appropriately truncated because he was not affiliated

with a federally recognized tribe:

We need not address, however, the question whether

LaPier has shown a significant degree of blood and

sufficient connection to his tribe to be regarded as

one of its members for criminal jurisdiction pur-

poses. See, e.g., United States v. Rogers, 45 U.S. (4

How.) 567, 573 (1846); United States v. Broncheau,

597 F.2d 1260, 1263 (9th Cir. 1979), cert. denied,

444 U.S. 859 (1979). There is a simpler threshold

question that must be answered first, and in this case

it is dispositive: Is the Indian group with which

LaPier claims affiliation a federally acknowledged

Indian tribe?

If the answer is no, the inquiry ends. A defendant

whose only claim of membership or affiliation is

with an Indian group that is not a federally acknowl-

edged Indian tribe cannot be an Indian for criminal

jurisdiction purposes. Cf. United States v. Heath, 509

F.2d 16, 19 (9th Cir. 1974) (member of “terminated”

Indian tribe no longer an Indian for criminal jurisdic-

tion purposes).

Id. at 304-05.

LaPier’s requirement reflects the purpose of requiring

proof of Indian status under § 1153, namely not to identify

individuals as Indian solely in a racial or anthropological

sense, but to identify individuals who share a special relation-

ship with the federal government. See LaPier, 986 F.2d at 305

(“Federal legislation treating Indians distinctively is rooted in

‘the unique legal status of Indian tribes under federal law and

upon the plenary power of Congress, based on a history of

UNITED STATES v. MAGGI 4313

treaties and the assumption of a “guardian-ward” status, to

legislate on behalf of federally recognized Indian tribes.’ ”

(quoting Morton v. Mancari, 417 U.S. 535, 551 (1974))).

The Supreme Court explained the connection between this

special federal relationship and the exercise of federal crimi-

nal jurisdiction in United States v. Antelope. The Court dis-

pelled the notion that racial classification drives the Indian

status identification under § 1153:

[I]n the present case we are dealing, not with matters

of tribal self-regulation, but with federal regulation

of criminal conduct within Indian country implicat-

ing Indian interests. But the principles reaffirmed in

[Morton v.] Mancari and Fisher [v. District Court]

point more broadly to the conclusion that federal

regulation of Indian affairs is not based upon imper-

missible classifications. Rather, such regulation is

rooted in the unique status of Indians as “a separate

people” with their own political institutions. Federal

regulation of Indian tribes, therefore, is governance

of once-sovereign political communities; it is not to

be viewed as legislation of a “ ‘racial’ group consist-

ing of ‘Indians’ . . . .” Morton v. Mancari, supra, at

553 n. 24.

430 U.S. at 646. We recently echoed the sentiments in Ante-

lope to spell out how criminal jurisdiction over Indians does

not cover all Indians in an ethnic sense. In interpreting the

1990 Amendments to the Indian Civil Rights Act, which clari-

fied that Indian tribes have the inherent power to exercise

jurisdiction over all Indians, we explained: “Taken together,

the 1990 Amendments, the Major Crimes Act, and Antelope

mean that the criminal jurisdiction of tribes over ‘all Indians’

recognized by the 1990 Amendments means all of Indian

ancestry who are also Indian by political affiliation, not all

who are racially Indians.” Means v. Navajo Nation, 432 F.3d

924, 930 (9th Cir. 2005).

4314 UNITED STATES v. MAGGI

At Mann’s trial, the government argued that LaPier has

been superseded by the test for Indian status captured in

Bruce. The district court in turn questioned the “continuing

vitality of the LaPier case,” and noted that “the Bruce case,

while not directly overruling LaPier, eviscerates any declara-

tions that appear in the LaPier decision that are contrary to

the detailed analysis of the entire issue by the court in the

Bruce opinion.”

Although we do not view the cases as being in conflict, we

want to put to rest any potential confusion or any suggestion

that LaPier has passed out of the equation for Indian status.

LaPier’s holding that Indian status requires affiliation with a

federally recognized tribe remains good law and is comple-

mented by the Bruce test, which presupposes that “tribal or

government recognition as an Indian” means as an Indian

from a federally recognized tribe1.

II. APPLICATION OF THE UNITED STATES V. BRUCE Test

Mann and Maggi both contend that the district court erred

by denying their motions to acquit because the element of

Indian status was not established. “Where a defendant moves

for acquittal at the close of the government’s evidence, we

review de novo whether sufficient evidence exists to support

a guilty verdict.” United States v. Stewart, 420 F.3d 1007,

1014 (9th Cir. 2005). In applying the deferential sufficiency

of the evidence standard, we determine “whether, after view-

ing the evidence in the light most favorable to the prosecu-

tion, any rational trier of fact could have found the essential

1

LaPier’s requirement of affiliation with a recognized tribe is consid-

ered hornbook law: “For many federal jurisdictional and statutory pur-

poses it is not enough that the individual be regarded as an Indian by his

or her community; the person must be considered a member of a federally

recognized tribe. LaPier, 986 F.2d at 305; State v. Sebastian, 243 Conn.

115 (1997); United States v. Antoine, 318 F.3d 919 (9th Cir. 2003).”

WILLIAM C. CANBY, JR., AMERICAN INDIAN LAW IN A NUTSHELL 10 (5th ed.

2009) (“CANBY 5th Ed.”) (emphasis in original).

UNITED STATES v. MAGGI 4315

elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979); see also Cruz, 554 F.3d

at 843-44 (holding that sufficiency of evidence standard

applies when reviewing the denial of a motion for acquittal

challenging jurisdictional element of Indian status, as “we

owe deference to the jury’s ultimate factual finding”).2

A. DEGREE OF INDIAN BLOOD

The first prong of the Bruce test considers “the degree of

Indian blood.” 394 F.3d at 1223. Although the “blood” termi-

nology may sound anachronistic, this long-standing require-

ment retains a current purpose. The blood element excludes

individuals, like the defendant in Rogers, who may have

developed social and practical connections to an Indian tribe,

but cannot claim any ancestral connection to a formerly-

sovereign community. Bruce explains that the blood degree

prong requires ancestry living in America before the arrival of

the Europeans, and notes that the fact “is obviously rarely

provable as such . . . . [Therefore] [b]ecause the general

requirement is only of ‘some blood,’ evidence of a parent,

grandparent, or great-grandparent who is clearly identified as

an Indian is generally sufficient to satisfy this prong.” 394

F.3d at 1222 (citing WILLIAM C. CANBY, JR., AMERICAN INDIAN

LAW IN A NUTSHELL 9 (4th ed. 2004)).

As discussed earlier, implicit in this discussion of Indian

blood is that the bloodline be derived from a federally recog-

nized tribe. See Antelope, 430 U.S. at 646; LaPier, 986 F.2d

at 305. Although commentators have suggested that a low

quantum of Indian blood may be sufficient under the statute,

2

The government argues that plain error review should apply to Maggi’s

motion for judgment of acquittal because, although Maggi moved for

judgment of acquittal at the close of the government’s case, he did not

renew the motion after it was denied. Because Maggi did not put on a case

at trial, and thus all the evidence was entered when Maggi submitted his

motion to acquit, it was unnecessary to renew the motion to preserve de

novo review. See Stewart, 420 F.3d at 1014.

4316 UNITED STATES v. MAGGI

we have not had occasion to test just how “low” is too low.

See COHEN, supra, § 3.03[4] (“There is no specific percentage

of Indian ancestry required to satisfy the descent prong of this

test.”); CANBY 5TH ED., supra, at 9 (“Because the general

requirement is only of ‘some blood,’ a person may be clas-

sifed as an Indian despite a very low quantum of Indian blood,

such as one-sixteenth.”). The lowest quantum we have coun-

tenanced is 1/8 Indian blood. See Bruce, 394 F.3d at 1223

(citing with approval Sully v. United States, 195 F. 113

(D.S.D. 1912)).

[5] Mann has no blood from a federally recognized tribe.

He has a blood degree of 10/64 Chippewa, which represents

the blood related to his membership in the Little Shell Tribe

of the Chippewa Cree, a non-recognized tribe. He also has

11/64 “other” Indian blood; no tribe is identified for that

blood. Given the absence of evidence of any blood from a

federally recognized tribe, Mann cannot meet the first prong

of Bruce, and his conviction must be vacated.

[6] Maggi has a very small percentage of Indian blood

from a federally recognized tribe—1/64 Blackfeet blood. In

other words, Maggi has just one full-blooded Blackfeet ances-

tor in seven generations or, put another way, 1/64 Blackfeet

blood corresponds to one great-great-great-great-great grand-

parent who was full-blooded Blackfeet, and sixty three great-

great-great-great-great grandparents who had no Blackfeet

blood. Maggi argues that this amount is so small as to render

him not an Indian under the statute. We need not resolve,

however, the question whether there is a baseline quantum of

Indian blood required because Maggi does not meet Bruce’s

second prong of tribal or government recognition.

B. TRIBAL OR GOVERNMENT RECOGNITION AS AN INDIAN

[7] The second prong of the Indian status test requires

“tribal or government recognition as an Indian.” Bruce, 394

F.3d at 1223. This prong “require[s] membership or affiliation

UNITED STATES v. MAGGI 4317

with a federally recognized tribe.” See COHEN, supra,

§ 9.02[1][d] (citing LaPier, among other cases). Converse to

the blood degree prong, this requirement filters out individu-

als who may have an Indian ancestral connection, but do not

possess sufficient current social and practical connections to

a federally recognized tribe. Bruce, 394 F.3d at 1224 (noting

the “tribal or government recognition” prong of the status test

is designed to “ ‘probe[ ] whether the Native American has a

sufficient non-racial link to a formerly sovereign people.’ ”

(quoting St. Cloud v. United States, 702 F.Supp. 1456, 1461

(D.S.D. 1988))).

Bruce enumerates factors courts have frequently employed

to assess tribal or federal government recognition as an

Indian:

When analyzing this prong, courts have considered,

in declining order of importance, evidence of the fol-

lowing: “1) tribal enrollment; 2) government recog-

nition formally and informally through receipt of

assistance reserved only to Indians; 3) enjoyment of

the benefits of tribal affiliation; and 4) social recog-

nition as an Indian through residence on a reserva-

tion and participation in Indian social life.” United

States v. Lawrence, 51 F.3d 150, 152 (8th Cir. 1995)

(citing St. Cloud, 702 F. Supp. at 1461).

394 F.3d at 1224; see also Cruz, 554 F.3d at 846, 849 n.13

(affirming that declining factor analysis described in Bruce is

the correct approach for assessing tribal or government recog-

nition). We note that these four factors, while broad, should

not be deemed exclusive.

Bruce and Cruz provide helpful benchmarks in our assess-

ment of Indian status. Violet Bruce was charged under § 1152

with simple assault on an Indian child. She presented the

affirmative defense that she was an Indian, and therefore

could not be prosecuted under § 1152, because the victim was

4318 UNITED STATES v. MAGGI

also an Indian. Bruce, 394 F.3d at 1226.3 Bruce had 1/8 Chip-

pewa blood, but was not enrolled in a tribe. We concluded it

was error for the district court to rest its Indian status determi-

nation on lack of enrollment in a tribe. Id. at 1224-25. Instead,

coupled with the blood degree evidence, the following facts

regarding recognition were sufficient to meet Bruce’s burden

of production for the affirmative defense:

Bruce produced evidence that she had participated in

sacred tribal rituals, including at least one sweat

lodge ritual; that she was born on an Indian Reserva-

tion and continues to reside on one; that two of her

children are enrolled members of an Indian tribe; and

that she has been treated by Poplar Indian Health

Services and the Spotted Bull Treatment Center.

More significantly, her mother testified that when-

ever she was arrested it “had to have been [by] a

tribal person” and that she has been arrested by tribal

authorities “all her life.”

Id. at 1226.

We held the Indian status question should have gone to the

jury. Bruce supplies the relevant framework for determining

whether a defendant is an Indian under §§ 1152 and 1153.

However, as far as the quantum of evidence required, Bruce

is distinguishable here. In Bruce, we determined that the

defendant had met her burden of production under § 1153.

Here, however, the question is whether the government has

met its burden of persuasion under § 1152—the same ques-

tion we confronted in Cruz.

3

In contrast to § 1153(a), for prosecution under § 1152, the General

Crimes Act, a defendant must not be an Indian if the victim is an Indian.

While under § 1153(a) Indian status is an element of the crime that must

be proved beyond a reasonable doubt, under § 1152 Indian status is treated

as an affirmative defense for which the defendant has the burden of pro-

duction.

UNITED STATES v. MAGGI 4319

In Cruz, we concluded that the defendant did not meet the

tribal or government recognition requirement for Indian status

under § 1153. Christopher Cruz was a descendant member of

the Blackfeet tribe, but not an enrolled member. Cruz, 554

F.3d at 846. Although eligible for certain limited benefits due

to his status as a descendant member, there was no evidence

Cruz received any services reserved only for Indians or took

advantage of any benefits associated with tribal affiliation Id.

at 847-48. Nothing suggested that Cruz participated in any

way in tribal cultural life. Id. at 848. The only evidence in

favor of recognition was, under the final Bruce factor, that

Cruz lived on the Blackfeet reservation for a few years as a

child. Id. We concluded that “Cruz satisfies at best only a

small part of the least important factor of the four Bruce fac-

tors,” and that the district court’s failure to grant his motion

to acquit was error. Id. at 848, 851.

The government claims Maggi has tribal or government

recognition as an Indian as a result of his affiliation with the

Blackfeet tribe. Maggi is not an enrolled member of the

Blackfeet tribe and is ineligible to be a member. He is a

descendant member of the tribe through his mother, though

even she (with 1/32 Blackfeet blood) would not qualify for

membership under the tribe’s present requirement. While

descendant status does not carry similar weight to enrollment,

and should not be considered determinative, Cruz, 554 F.3d

at 847, it reflects some degree of recognition.

The posture of Cruz was analogous to this case. Taking the

evidence in the light most favorable to the government, we

concluded that Cruz did not satisfy any of the Bruce factors.

Cruz cataloged seven points relating to Indian status, which

we repeat here in detail for purposes of comparison:

1. Cruz, like Maggi, “is not an enrolled member of the

blackfeet Tribe of Indians or any other tribe.” Cruz, 554 F.3d

at 846.

4320 UNITED STATES v. MAGGI

2. Cruz, like Maggi, has “ ‘descendant’ status in the

Blackfeet Tribe as the son of an enrolled member (his

mother), which entitles him to use IHS, to receive some edu-

cational grants, and to fish and hunt on the reservation.” Id.

3. Cruz never took advantage of any of the descendant

benefits. Id. There is only one documented instance of Maggi

using IHS services. There is no evidence of Maggi taking

advantage of any other benefits.

4. Cruz lived on the Blackfeet Reservation as a child and

rented a room on the reservation shortly before the offense.

Id. No evidence was produced that Maggi ever resided on the

Blackfeet Reservation.

5. Cruz “was subject to the criminal jurisdiction of the

tribal court and was at one time prosecuted in tribal court.” Id.

Maggi was prosecuted in tribal court several times.

6. Cruz attended public school on the reservation and

worked for the Bureau of Indian Affairs. Id. No such evidence

was produced as to Maggi.

7. Cruz never participated in Indian ceremonies or dance

festivals, never voted in a tribal election, and did not have a

tribal identification card. Id. According to one witness, Maggi

talked about going to sweats. Another witness stated Maggi

mentioned going to other tribal ceremonies, but admitted that

she had no personal knowledge of his attendance. Those wit-

nesses also testified that Maggi held himself out as an Indian.

Like Cruz, there was no evidence that Maggi voted in a tribal

election or had a tribal identification card.

We have little guidance as to the quantum of evidence nec-

essary to sustain Indian status jurisdiction. Sorting through the

handful of circuit cases addressing the issue simply under-

scores the need for case-by-case analysis and the necessity of

invoking the Jackson v. Virginia standard, as we do in other

UNITED STATES v. MAGGI 4321

criminal cases. 443 U.S. at 319. The facts here are remarkably

close to Cruz, in which we held that the government did not

sustain its burden at trial. We reach the same conclusion here.

[8] When the record is boiled down, the evidence produced

by the government to show tribal or government recognition

of Maggi as an Indian consists of (a) status as a descendant

member of the Blackfeet Tribe; (b) one instance of accessing

Indian Health Services; (c) prosecutions in tribal court, with-

out evidence regarding the result of those prosecutions or

whether jurisdiction based on Indian status was determined by

the court; and (d) testimony based on second-hand knowledge

that Maggi participated in some tribal ceremonies. This sparse

collection does not provide sufficient evidence of any of the

factors set out in Bruce. In sum, the government did not estab-

lish facts sufficient to demonstrate tribal or government rec-

ognition of Maggi as an Indian. The district court erred in

denying Maggi’s motion to acquit.

CONCLUSION

The denial of Mann’s motion for acquittal is REVERSED,

and his conviction under 18 U.S.C. § 1153 should be vacated.

The denial of Maggi’s motion for acquittal is REVERSED,

and his conviction under 18 U.S.C. § 1153 should be vacated.