On Judge Kozinski’s Dissent in U.S. v. Cruz

United States v. Cruz (our post here, with briefs) has been getting a fair bit of attention these days in the news (LA Times; How Appealing here and here; Indianz collects articles), probably because Judge Kozinski dissented so strongly.

It is very interesting to see the Ninth Circuit struggle over who is an Indian for purposes of federal criminal jurisdiction, esp. given how Indian tribes struggle over it. But, unfortunately, cases like this will give United States Attorney’s Offices with Indian Country jurisdiction all the more reason to decline to prosecute Indian Country crimes.

The majority’s opinion, in sort of a backwards way, is heading in the right direction. Eventually, I suspect, the federal courts will abandon the common law free-for-all and adopt a bright-line rule based on tribal citizenship, a standard more in line with the political status test used in Morton v. Mancari.

Right now, in the Ninth Circuit, the test is, according to the Cruz majority:

The Bruce test requires that the Government prove two things: that the defendant has a sufficient “degree of Indian blood,” and has “tribal or federal government recognition as an Indian.” Id. at 1223, 1224 (quoting United States v. Keys, 103 F.3d 758, 761 (9th Cir. 1996)).

The first part, “sufficient degree of Indian blood” apparently can be something less than 25 percent (in Cruz, it was about 22 percent). Some tribes have minimal Indian blood quantum requirements, resorting to lineal descendancy (e.g., Cherokee Nation of Oklahoma, Sault Ste. Marie Tribe of Chippewa Indians).

It’s the second part where the Cruz majority and Judge Kozinski parted. Judge Kozinski’s dissent is a defense of the second prong (but more so a dramatic attack on the majority’s reasoning). He’s right in many respects. Cruz should be considered an Indian and definitely is, at least by his tribal community. But just because his community subjectively views him as one their own, that’s sufficient to invoke the awesome power of the federal criminal laws? The majority wants something more. And what the majority should do — and perhaps the Ninth Circuit will eventually do — is adopt a bright-line rule on what “tribal or federal government recognition as an Indian means.”

In other words, citizenship in a federally recognized tribe should be the rule. It’s simple and easy, and objective. It’s consistent with the political status test of Mancari, and seems less like an arbitrary application of a race-based law. Plus, if A.U.S.A.’s only have to provide evidence that a criminal defendant is a tribal citizen, there is less effort expended in proving the factual predicates to federal criminal jurisdiction.

Ironically, Judge Kozinski’s dissent defending the broader application of the Bruce test is both a defense of a balancing test he decries, and a defense of a race-based standard. It’s ironic because Judge Kozinski once predicted the end of race-based rules in federal Indian law in Williams v. Babbitt, in which he wrote for a majority that struck down laws designed to protect the Alaskan Native reindeer industry on the grounds that they were race-based.

One might argue that there’s a pretty good reason for the definition of Indian to include persons who aren’t members of federally recognized members of Indian tribes, but who are plainly Indian. I’d like to be persuaded that there are good reasons.

6 thoughts on “On Judge Kozinski’s Dissent in U.S. v. Cruz

  1. M. Brent Leonhard February 12, 2009 / 10:57 am

    How would you resolve the following hypothetical?

    A member of the New York State recognized (but not federally) Shinnecock tribe residing within the exterior boundaries of the Cayuga Nation commits a major crimes assault on his wife who is a member of the Cayuga Nation.

    I don’t know New York law, but assume the State would find that it does not have jurisdiction because the defendant is an Indian. The feds, under a bright line rule, would find they lack jurisdiction because the Shinnecock tribe is not yet federally recognized (I think that is still true). Finally, the Cayuga Nation may try and prosecute, but what would the result be if the Shinnecock member appealed to federal court for dismissal on the basis that the tribe’s lack jurisdiction because he is not an Indian (i.e., under the bright line rule, a member of a federally recognized tribe)? I assume if the federal courts adopt a bright line rule they would find that the Cayuga Nation also lacks jurisdiction because they would be trying to prosecute a non-Indian for the commission of a crime.

  2. Matthew L.M. Fletcher February 12, 2009 / 11:26 am

    The New York Indian Act 25 USC 232 would cover those crimes in N.Y., but the question is a good one for many other states.

    Frankly, under my idea, if the state refuses to prosecute, then they’re just wrong. They would have jurisdiction over any non-tribally enrolled Indian (under my idea). So maybe my idea just creates another loophole.

    The proper solution following that is to extend tribal criminal jurisdiction….

  3. M. Brent Leonhard February 12, 2009 / 12:05 pm

    Would the state be wrong? Your argument, at core (if I understand it correctly), is that jurisdiction should be grounded on the political status of the individual, rather than the race of the individual. The State and tribe recognize the individual as a member of the tribe (whether you call it enrollment or something else), just not the feds. Having recognized the individual as a member of a tribe, shouldn’t the state likewise find they lack jurisdiction and that jurisdiction is properly with the tribe? After all, such a finding would be political based rather than race based. An opposite finding might not be race based, but it would certainly undermine the power of a State to recognize tribes as sovereign governments independent of the federal government.

    Of course, expanding tribal criminal jurisdiction would be wonderful, but I don’t see that happening through federal common law and we’ve got a long way to go to get Congress to pass such legislation. (The pilot project idea for prosecuting non-Indians who commit DV crimes on reservations didn’t even make it into the 2008 Tribal Law and Order Act due to the fact that, from my understanding/opinion, the bill had no chance of passing with that provision – or any varient of the idea – in it).

    On a more ephemeral note, there is also the problem that such a bright line rule really puts the power of determining the political status of an Indian in the hands of the federal government rather than a tribe.

  4. Sarah Deer February 12, 2009 / 12:17 pm

    I noticed that the defense attorney in this case is being quoted in the press as saying that the state cannot prosecute Cruz “because of double jeopardy.”


  5. Paul Spruhan February 12, 2009 / 12:19 pm

    If a member of a state-recognized tribe is not an Indian under federal law, the scenario discussed above would still be under federal jurisdiction outside of New York under 18 U.S.C. Sec. 1152, which grants federal jurisdiction over crimes committed by non-Indians against Indians. So even if if crime cannot be prosecuted under the Major Crimes Act, which requires an Indian offender, the perpetrator would still be able to be prosecuted by the United States.

  6. M. Brent Leonhard February 12, 2009 / 2:39 pm

    Good point Mr. Spruhan. Maybe the hypo should be changed to member of Shinnecock against non-Indian wife. With a bright line rule the feds would say they have no jurisdiction as it is exclusively state (non-Indian vs. non-Indian). But, presumably, the state would likely claim they have no jurisdiction because the state recognizes the Shinnecock member as Indian (i.e., Indian vs. non-Indian) and it should be in federal or tribal court.

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