I’m still trying to understand how a reasonable jury of non-Indians can decided beyond a reasonable doubt that someone is an “Indian” under the Major Crimes Act. 🙂
Here are the materials in United States v. LaBuff:
The court originally decided this case without publishing the opinion, but the government successfully petitioned the court to published it. Here are those materials. A cert petition is pending (docket no. 11-6168, definitely one to watch!):
Update with additional Ninth Circuit materials:
Doc 27 Objection filed October 18, 2011
Turtle Talk 
I find it entirely inconsistent that tribal sovereignty/enrollment is being overridden in federal criminal prosecutions through the ability of non-Indian juries to establish that a person is “Indian” under federal Indian law for the purpose of prosecution but not eligible for educational benefits as an “Indian” by failing to meet the requirements of tribal enrollment or the 1/4th blood quantum standard under federal regulations. Apparently, criminalizing a person as “indian” is easier than supporting a person’s ability to attain an education as an “Indian.”
Looks alot like Cruz to me. Maybe the 9th Cir. is leaning more towards Chief Judge Kozinski’s dissent from Cruz here?