The Eighth Circuit’s decision that Matthew Stymiest is an “Indian” under 18 U.S.C. 1153(a) raises possible constitutional questions about due process and vagueness of a criminal statute, and it may be ripe for review by the Supreme Court as a circuit split.
Federal courts have adopted common law “tests” to determine whether a person charged under the statute is an Indian — they have to be in order to be convicted. The Eighth Circuit’s test lists a series of factors for a jury to consider in determining whether the defendant is an Indian.
Stymiest is a descendant of Leech Lake Band members, but he does not have the blood quantum to be eligible for membership himself. He often held himself out to be an Indian when it was to his advantage, such as when he was seeking Indian health clinic services, or in earlier criminal debacles where he probably thought it was to his advantage. But the local IHS people often asked him to produce some ID, which of course he never could. So is he an Indian? Hmmm.
And the wild thing about all of this is that under the statute, a jury of non-Indians (likely) will decide on these facts whether or not defendants like Stymiest are Indians beyond a reasonable doubt. As a matter of law, it is improbable that a jury can make a finding of “Indianness” under such a standard.
The Stymiest case likely conflicts in large part with the Ninth Circuit’s recent decision in United States v. Cruz. There, the court held that Christopher Cruz was not an Indian, despite being nearly quarter blood, although ineligible for tribal membership with the Blackfeet Nation. He worked for the BIA, spent several years of his childhood on the reservation, is eligible for some IHS and treaty hunting and fishing benefits, and was even once prosecuted in tribal court for a minor violation. In other words, Cruz is spectacularly similar to Stymiest.
Cruz isn’t an Indian under the Major Crimes Act, but Stymiest is. There’s a problem here.
Of note, Judge Kozinski dissented strongly from the Cruz majority. This is the kind of thing that gets the Supreme Court’s attention. Keep a lookout.
Here’s what he said in conclusion:
The majority engages in vigorous verbal callisthenics to reach a wholly counter-intuitive—and wrong—result. Along the way, it mucks up several already complex areas of the law and does grave injury to our plain error standard of review. I hasten to run in the other direction.
Turtle Talk 
I have a question: If the jury determines Stymiest is Indian, does he then become eligible for tribal membership, tribal preference in hiring, IHS services? If not, why not? Likewise, in the case of Mr. Cruz, when it was determined that he was NOT Indian, did he lose any privileges associated with being a federally recognized person? Lastly, if the Supreme Court has ruled that tribal membership is to be determined by the Tribe in question, how can any non-tribal venue determine Indian-ness? If a determination can be made (by any jurisdiction) that a person is Indian although not eligible for tribal membership, it suggests the prima facie existence of “Meti” in America, along the lines of that Canadian First People’s status. this gets curiouser and curiouser. Kristi
It would seem only reasonable that if tribal membership may be determined by blood quantum, Congress should set a blood quantum on those individuals who are entitled to benefits from the U.S. taxpayers.
Tribal governments may change membership requirements to enhance the tribe but should not be able to control the funding provided by doing so.
what is the legal quantum of blood to be consider
an indian
Why does the federal government, courts, or anyone else for that matter get to determine what one’s race is? Do you have to be on a register or roll to be white? Does the court determine if you have enough blood quantum to be black?